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Dobbs v. Zant
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https://www.courtlistener.com/opinion/112806/dobbs-v-zant/
|
exclusion of the transcript cannot be justified by the delay in its discovery. That delay resulted substantially from the State's own erroneous assertions that closing arguments had not been transcribed. As the District Court found: "[T]he entire transcript should have been made available for Dobbs' direct appeal, and the State represented to this Court that the sentencing phase closing arguments could not be transcribed. Dobbs' position that he legitimately relied on the State's representation is well taken." Civ. Action No. 80-247 (ND Ga., Mar. 6, 1990), p. 4. We hold that, under the particular circumstances described above, the Court of Appeals erred by refusing to consider the sentencing hearing transcript. The judgment *360 of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. The Chief Justice and Justice White would grant certiorari and give the case plenary consideration. Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
|
Justice Douglas
| 1,972 | 10 |
dissenting
|
Kastigar v. United States
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https://www.courtlistener.com/opinion/108541/kastigar-v-united-states/
|
The Self-Icrimiatio Clause says: "No perso shall be compelled i ay crimial case to be a witess agaist himself." I see o aswer to the propositio that he is such a witess whe oly "use" immuity is grated. My views o the questio of the scope of immuity that is ecessary to force a witess to give up his guaratee *463 agaist self-icrimiatio cotaied i the Fifth Amedmet are so well kow, see (dissetig), ad (dissetig), that I eed ot write at legth. I the Court adopted the trasactioal immuity test: "I view of the costitutioal provisio, a statutory eactmet, to be valid, must afford absolute immuity agaist future prosecutio for the offese to which the questio relates." at I a case ivolvig aother federal prosecutio, the immuity statute provided that the witess would be protected "o accout of ay trasactio cocerig which he may testify." The Court held that the immuity offered was cotermious with the privilege ad that the witess could therefore be compelled to testify, a rulig that made "trasactioal immuity" part of the fabric of our costitutioal law. This Court, however, apparetly believes that Couselma ad its progey were overruled sub siletio i Murphy ivolved state witesses, grated trasactioal immuity uder state law, who refused to testify for fear of subsequet federal prosecutio. We held that the testimoy i questio could be compelled, but that the Federal Govermet would be barred from usig ay of the testimoy, or its fruits, i a subsequet federal prosecutio. Murphy overruled, ot Couselma, but Feldma v. Uited which had held "that oe jurisdictio withi our federal structure may compel a witess to give testimoy which could be used to covict him of a crime i aother jurisdictio." But Couselma, *464 as the Murphy Court recogized, "said othig about the problem of icrimiatio uder the law of aother sovereig." That problem is oe of federalism, as to require trasactioal immuity betwee jurisdictios might "deprive a state of the right to prosecute a violatio of its crimial law o the basis of aother state's grat of immuity [a result which] would be gravely i derogatio of its sovereigty ad obstructive of its admiistratio of justice." Uited ex rel. Catea v. Elias, Moreover, as MR. JUSTICE BRENNAN has poited out, the threat of future prosecutio "substatial whe a sigle jurisdictio both compels icrimiatig testimoy ad brigs a later prosecutio, may fade whe the jurisdictio brigig the prosecutio differs from the jurisdictio that compelled the testimoy. Cocer over iformal ad udetected exchage of iformatio is also correspodigly less whe two differet jurisdictios are ivolved."
|
Justice Douglas
| 1,972 | 10 |
dissenting
|
Kastigar v. United States
|
https://www.courtlistener.com/opinion/108541/kastigar-v-united-states/
|
is also correspodigly less whe two differet jurisdictios are ivolved." (dissetig). Noe of these factors apply whe the threat of prosecutio is from the jurisdictio seekig to compel the testimoy, which is the situatio we faced i Couselma, ad which we face today. The irrelevace of Murphy to such a situatio was made clear i Albertso v. Subversive Activities Cotrol Board, i which the Court struck dow a immuity statute because it failed to measure up to the stadards set forth i Couselma. Iasmuch as o iterjurisdictioal problems preseted themselves, Murphy was ot eve cited. That is further proof that Murphy was ot thought sigificatly to *465 udercut Couselma.[1] See Steves v. Marks, 2-245; (Harla, J., cocurrig ad dissetig); Masfield, The Albertso Case: Coflict Betwee the Privilege Agaist Self-Icrimiatio ad the Govermet's Need for Iformatio, If, as some have thought, the Bill of Rights cotaied oly "cousels of moderatio" from which courts ad legislatures could deviate accordig to their cosciece or discretio, the today's cotractio of the Self-Icrimiatio Clause of the Fifth Amedmet would be uderstadable. But that has ot bee true, startig with Chief Justice Marshall's opiio i Uited v. Burr, *466 (No. 14692e) (CC Va.), where he ruled that the reach of the Fifth Amedmet was so broad as to make the privilege applicable whe there was a mere possibility of a crimial charge beig made. The Court said i Hale v. Hekel, that "if the crimiality has already bee take away, the Amedmet ceases to apply." I other words, the immuity grated is adequate if it operates as a complete pardo for the offese. That is the true measure of the Self-Icrimiatio Clause. As MR. JUSTICE BRENNAN has stated: "[U]se immuity literally misses half the poit of the privilege, for it permits the compulsio without removig the crimiality." at 5 (dissetig). As MR. JUSTICE BRENNAN has also said: "Trasactioal immuity provides the idividual with a assurace that he is ot testifyig about matters for which he may later be prosecuted. No questio arises of tracig the use or o-use of iformatio gleaed from the witess' compelled testimoy. The sole questio preseted to a court is whether the subsequet prosecutio is related to the substace of the compelled testimoy. Both witess ad govermet kow precisely where they stad. Respect for law is furthered whe the idividual kows his positio ad is ot left suspicious that a later prosecutio was actually the fruit of his compelled testimoy." -569 (dissetig). Whe we allow the prosecutio to offer oly "use" immuity we allow it to grat far less tha it has
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Parents Involved in Community Schools v. Seattle School Dist. No. 1
|
https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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Today, the Court holds that state entities may not experiment with race-based means to achieve ends they deem socially desirable. I wholly concur in THE CHIEF JUSTICE's opinion. I write separately to address several of the contentions in JUSTICE REYER's dissent (hereinafter the dissent). Contrary to the dissent's arguments, reseg-regation is not occurring in Seattle or Louisville; these school boards have no present interest in remedying past segregation; and these race-based student-assignment programs do not serve any compelling state interest. Accordingly, the plans are unconstitutional. Disfavoring a color-blind interpretation of the Constitution, the dissent would give school boards a free hand to make decisions on the basis of racean approach reminiscent of that advocated by the segregationists in rown v. oard of Education, 347 U. S 483 This approach is just as wrong today as it was a half-century ago. The Constitution and our cases require us to be much more demanding before permitting local school boards to make decisions based on race. I The dissent repeatedly claims that the school districts are threatened with resegregation and that they will succumb to that threat if these plans are declared unconstitutional. It also argues that these plans can be justified as part of the school boards' attempts to "eradicat[e] earlier school segregation." See, e.g., post, at 4. Contrary to the dissent's rhetoric, neither of these school districts is threatened with resegregation, and neither is constitutionally compelled or permitted to undertake race-based remediation. Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference. A ecause this Court has authorized and required race-based remedial measures to address de jure segregation, it is important to define segregation clearly and to distinguish it from racial imbalance. In the context of public schooling, segregation is the deliberate operation of a school system to "carry out a governmental policy to separate pupils in schools solely on the basis of race." ; see also (198). In rown, this Court declared that segregation was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. at ; see also (198) ] held must be abolished").[1] Racial imbalance is the failure of a school district's individual schools to match or approximate the demographic makeup of the student population at large. Cf. 40 Racial imbalance is not segregation.[2] Although presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices. See at 25-2; 11 ecause racial imbalance is not inevitably linked to unconstitutional segregation, it is
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Parents Involved in Community Schools v. Seattle School Dist. No. 1
|
https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
|
imbalance is not inevitably linked to unconstitutional segregation, it is not unconstitutional in and of itself. Dayton d. of 433 U.S. 40, ; Dayton d. of 443 U.S. 52, ; 503 U.S. 47, ; see also ; cf. Although there is arguably a danger of racial imbalance in schools in Seattle and Louisville, there is no danger of resegregation. No one contends that Seattle has established or that Louisville has reestablished a dual school system that separates students on the basis of race. The statistics cited in Appendix A to the dissent are not to the contrary. See post, -72. At most, those statistics show a national trend toward classroom racial imbalance. However, racial imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us.[3] Just as the school districts lack an interest in preventing resegregation, they also have no present interest in remedying past segregation. The Constitution generally prohibits government race-based decisionmaking, but this Court has authorized the use of race-based measures for remedial purposes in two narrowly defined circumstances. First, in schools that were formerly segregated by law, race-based measures are sometimes constitutionally compelled to remedy prior school segregation. Second, in the Court appeared willing to authorize a government unit to remedy past discrimination for which it was responsible. U.S. 49, Without explicitly resting on either of these strands of doctrine, the dissent repeatedly invokes the school districts' supposed interests in remedying past segregation. Properly analyzed, though, these plans do not fall within either existing category of permissible racebased remediation. 1 The Constitution does not permit race-based government decisionmaking simply because a school district claims a remedial purpose and proceeds in good faith with arguably pure motives. 539 U.S. 30, ). Rather, race-based government decisionmaking is categorically prohibited unless narrowly tailored to serve a compelling interest. at 32; see also Part II-A, infra. This exacting scrutiny "has proven automatically fatal" in most cases. ; cf. And appropriately so. "The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all." Therefore, as a general rule, all race-based government decisionmakingregardless of contextis unconstitutional. 2 This Court has carved out a narrow exception to that general rule for cases in which a school district
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Parents Involved in Community Schools v. Seattle School Dist. No. 1
|
https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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that general rule for cases in which a school district has a "history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race."[4] See -. In such cases, race-based remedial measures are sometimes required.[5], -438; cf. United[] ut without a history of state-enforced racial separation, a school district has no affirmative legal obligation to take race-based remedial measures to eliminate segregation and its vestiges. Neither of the programs before us today is compelled as a remedial measure, and no one makes such a claim. Seattle has no history of de jure segregation; therefore, the Constitution did not require Seattle's plan.[7] Although Louisville once operated a segregated school system and was subject to a Federal District Court's desegregation decree, see ante, at 7; 37-377 that decree was dissolved in at 30. Since then, no race-based remedial measures have been required in Louisville. Thus, the race-based student-assignment plan at issue here, which was instituted the year after the dissolution of the desegregation decree, was not even arguably required by the Constitution. 3 Aside from constitutionally compelled remediation in schools, this Court has permitted government units to remedy prior racial discrimination only in narrow circumstances. See 47 U.S. 27, (198) Regardless of the constitutional validity of such remediation, see it does not apply here. Again, neither school board asserts that its race-based actions were taken to remedy prior discrimination. Seattle provides three forward-lookingas opposed to remedialjustifications for its race-based assignment plan. rief for Respondents in No. 05-908, pp. 24-34. Louisville asserts several similar forward-looking interests, rief for Respondents in No. 05-915, pp. 24-29, and at oral argument, counsel for Louisville disavowed any claim that Louisville's argument "depend[ed] in any way on the prior de jure segregation," Tr. of Oral Arg. in No. 05-915, p. 38. Furthermore, for a government unit to remedy past discrimination for which it was responsible, the Court has required it to demonstrate "a `strong basis in evidence for its conclusion that remedial action was necessary.'" (quoting at ). Establishing a "strong basis in evidence" requires proper findings regarding the extent of the government unit's past racial discrimination. U. S., at The findings should "define the scope of any injury [and] the necessary remedy," and must be more than "inherently unmeasurable claims of past wrongs," at 50. Assertions of general societal discrimination are plainly insufficient. at 499, ; ; cf. Regents of Univ. of 438 U.S. 25, Neither school district has made any such specific findings. For Seattle, the dissent
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Parents Involved in Community Schools v. Seattle School Dist. No. 1
|
https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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has made any such specific findings. For Seattle, the dissent attempts to make up for this failing by adverting to allegations made in past complaints filed against the Seattle school district. However, allegations in complaints cannot substitute for specific findings of prior discriminationeven when those allegations lead to settlements with complaining parties. Cf. ; As for Louisville, its slate was cleared by the District Court's dissolution decree, which effectively declared that there were no longer any effects of de jure discrimination in need of remediation.[8] Despite the dissent's repeated intimation of a remedial purpose, neither of the programs in question qualifies as a permissible race-based remedial measure. Thus, the programs are subject to the general rule that government race-based decisionmaking is unconstitutional. C As the foregoing demonstrates, racial balancing is some-times a constitutionally permissible remedy for the discrete legal wrong of de jure segregation, and when directed to that end, racial balancing is an exception to the general rule that government race-based decisionmaking is unconstitutional. Perhaps for this reason, the dissent conflates the concepts of segregation and racial imbalance: If racial imbalance equates to segregation, then it must also be constitutionally acceptable to use racial balancing to remedy racial imbalance. For at least two reasons, however, it is wrong to place the remediation of segregation on the same plane as the remediation of racial imbalance. First, as demonstrated above, the two concepts are distinct. Although racial imbalance can result from de jure segregation, it does not necessarily, and the further we get from the era of state sponsored racial separation, the less likely it is that racial imbalance has a traceable connection to any prior segregation. See 503 U. S., at 49; Second, a school cannot "remedy" racial imbalance in the same way that it can remedy segregation. Remediation of past de jure segregation is a one-time process involving the redress of a discrete legal injury inflicted by an identified entity. At some point, the discrete injury will be remedied, and the school district will be declared unitary. See Unlike de jure segregation, there is no ultimate remedy for racial imbalance. Individual schools will fall in and out of balance in the natural course, and the appropriate balance itself will shift with a school district's changing demographics. Thus, racial balancing will have to take place on an indefinite basisa continuous process with no identifiable culpable party and no discernable end point. In part for those reasons, the Court has never permitted outright racial balancing solely for the purpose of achieving a particular racial balance. II Lacking a cognizable interest
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Parents Involved in Community Schools v. Seattle School Dist. No. 1
|
https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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achieving a particular racial balance. II Lacking a cognizable interest in remediation, neither of these plans can survive strict scrutiny because neither plan serves a genuinely compelling state interest. The dissent avoids reaching that conclusion by unquestioningly accepting the assertions of selected social scientists while completely ignoring the fact that those assertions are the subject of fervent debate. Ultimately, the dissent's entire analysis is corrupted by the considerations that lead it initially to question whether strict scrutiny should apply at all. What emerges is a version of "strict scrutiny" that combines hollow assurances of harmlessness with reflexive acceptance of conventional wisdom. When it comes to government race-based decisionmaking, the Constitution demands more. A The dissent claims that "the law requires application here of a standard of review that is not `strict' in the traditional sense of that word." Post, at 3. This view is informed by dissents in our previous cases and the concurrences of two Court of Appeals judges. Post, at 34-3 ; ). Those lower court judges reasoned that programs like these are not "aimed at oppressing blacks" and do not "seek to give one racial group an edge over another." ; 42 F.3d, at 1193 They were further persuaded that these plans differed from other race-based programs this Court has considered because they are "certainly more benign than laws that favor or disfavor one race, segregate by race, or create quotas for or against a racial group," and they are "far from the original evils at which the Fourteenth Amendment was addressed," ; 42 F.3d, at 1195 Instead of strict scrutiny, Judge Kozinski would have analyzed the plans under "robust and realistic rational basis review." These arguments are inimical to the Constitution and to this Court's precedents.[9] We have made it unusually clear that strict scrutiny applies to every racial classification. ; 539 U. S., at 32;[10] There are good reasons not to apply a lesser standard to these cases. The constitutional problems with government race-based decisionmaking are not diminished in the slightest by the presence or absence of an intent to oppress any race or by the real or asserted well-meaning motives for the race-based decisionmaking. -229. Purportedly benign race-based decisionmaking suffers the same constitutional infirmity as invidious race-based decisionmaking. ("As far as the Constitution is concerned, it is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged"). Even supposing it mattered to the constitutional analysis, the race-based student assignment programs before us are
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Parents Involved in Community Schools v. Seattle School Dist. No. 1
|
https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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constitutional analysis, the race-based student assignment programs before us are not as benign as the dissent believes. See post, at 34-35. "[R]acial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination." As these programs demonstrate, every time the government uses racial criteria to "bring the races together," post, someone gets excluded, and the person excluded suffers an injury solely because of his or her race. The petitioner in the Louisville case received a letter from the school board informing her that her kindergartener would not be allowed to attend the school of petitioner's choosing because of the child's race. App. in No. 05-915, p. 97. Doubtless, hundreds of letters like this went out from both school boards every year these racebased assignment plans were in operation. This type of exclusion, solely on the basis of race, is precisely the sort of government action that pits the races against one another, exacerbates racial tension, and "provoke[s] resentment among those who believe that they have been wronged by the government's use of race." Accordingly, these plans are simply one more variation on the government race-based decisionmaking we have consistently held must be subjected to strict scrutiny. at 32. Though the dissent admits to discomfort in applying strict scrutiny to these plans, it claims to have nonetheless applied that exacting standard. ut in its search for a compelling interest, the dissent casually accepts even the most tenuous interests asserted on behalf of the plans, grouping them all under the term "`integration.'" See post, at 37. "`[I]ntegration,'" we are told, has "three essential elements." None of these elements is compelling. And the combination of the three unsubstantiated elements does not produce an interest any more compelling than that represented by each element independently. 1 According to the dissent, integration involves "an interest in setting right the consequences of prior conditions of segregation." Post, at 37. For the reasons explained above, the records in these cases do not demonstrate that either school board's plan is supported by an interest in remedying past discrimination. Part I, Moreover, the school boards have no interest in remedying the sundry consequences of prior segregation unrelated to schooling, such as "housing patterns, employment practices, economic conditions, and social attitudes." Post, at 38. General claims that past school segregation affected such varied societal trends are "too amorphous a basis for imposing a racially classified remedy," 47 U. S., because "[i]t is sheer speculation" how decades-past segregation in the school system might have affected these trends, see Consequently, school boards seeking to remedy those
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Parents Involved in Community Schools v. Seattle School Dist. No. 1
|
https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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these trends, see Consequently, school boards seeking to remedy those societal problems with race-based measures in schools today would have no way to gauge the proper scope of the remedy. Indeed, remedial measures geared toward such broad and unrelated societal ills have "`no logical stopping point,'" ib and threaten to become "ageless in their reach into the past, and timeless in their ability to affect the future," See ecause the school boards lack any further interest in remedying segregation, this element offers no support for the purported interest in "integration." 2 Next, the dissent argues that the interest in integration has an educational element. The dissent asserts that racially balanced schools improve educational outcomes for black children. In support, the dissent unquestioningly cites certain social science research to support propositions that are hotly disputed among social scientists. In reality, it is far from apparent that coerced racial mixing has any educational benefits, much less that integration is necessary to black achievement. Scholars have differing opinions as to whether educational benefits arise from racial balancing. Some have concluded that black students receive genuine educational benefits. See, e.g., Crain & Mahard, Desegregation and lack Achievement: A Review of the Research, 42 L. & Contemp. Probs. 17, 48 Others have been more circumspect. See, e.g., Henderson, berg, Schneider, Uribe, & Verdugo, High Quality Schooling for African American Students, in eyond Desegregation 1 (M. Shujaa ed. 199) ("Perhaps desegregation does not have a single effect, positive or negative, on the academic achievement of African American students, but rather some strategies help, some hurt, and still others make no difference whatsoever. It is clear to us that focusing simply on demographic issues detracts from focusing on improving schools"). And some have concluded that there are no demonstrable educational benefits. See, e.g., Armor & Rossell, Desegregation and Resegregation in the Public Schools, in eyond the Color Line: New Perspectives on Race and Ethnicity in America 251 The amicus briefs in the cases before us mirror this divergence of opinion. Supporting the school boards, one amicus has assured us that "both early desegregation research and recent statistical and econometric analyses. indicate that there are positive effects on minority student achievement scores arising from diverse school settings." rief for American Educational Research Association as Amicus Curiae 10. Another brief claims that "school desegregation has a modest positive impact on the achievement of African-American students." App. to rief for 553 Social Scientists as Amici Curiae 13-14 (footnote omitted). Yet neither of those briefs contains specific details like the magnitude of the claimed positive effects or the precise demographic mix
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Parents Involved in Community Schools v. Seattle School Dist. No. 1
|
https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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of the claimed positive effects or the precise demographic mix at which those positive effects begin to be realized. Indeed, the social scientists' brief rather cautiously claims the existence of any benefit at all, describing the "positive impact" as "modest," acknowledging that "there appears to be little or no effect on math scores," and admitting that the "underlying reasons for these gains in achievement are not entirely clear,"[11] Other amici dispute these findings. One amicus reports that "[i]n study after study, racial composition of a student body, when isolated, proves to be an insignificant determinant of student achievement." rief for Dr. John Murphy et al. as Amici Curiae in No. 05-908, p. 8; see also Another amicus surveys several social science studies and concludes that "a fair and comprehensive analysis of the research shows that there is no clear and consistent evidence of [educational] benefits." rief for David J. Armor et al. as Amici Curiae 29. Add to the inconclusive social science the fact of black achievement in "racially isolated" environments. See T. Sowell, Education: Assumptions Versus History 7-38 (198). efore rown, the most prominent example of an exemplary black school was Dunbar High School. Dunbar is by no means an isolated example. See ; Walker, Can Institutions Care? Evidence from the Segregated Schooling of African American Children, in eyond Desegregation 209-22 (M. Shujaa ed. 199); see also T. Sowell, Affirmative Action Around the World: An Empirical Study 141-15 Even after rown, some schools with predominantly black enrollments have achieved outstanding educational results. See, e.g., S. Carter, No Excuses: Lessons from 21 High-Performing, High-Poverty Schools 49-50, 53-5, 71-73, 81-84, 87-88 (2001); A. Thernstrom & S. Thernstrom, No Excuses: Closing the Racial Gap in Learning 43-4 ; see also L. Izumi, They Have Overcome: HighP-overty, High-Performing Schools in California (chronicling exemplary achievement in predominantly Hispanic schools in California). There is also evidence that black students attending historically black colleges achieve better academic results than those attending predominantly white colleges. at 34-35 (citing sources); see also U. S., at 748-749 The Seattle school board itself must believe that racial mixing is not necessary to black achievement. Seattle operates a K-8 "African-American Academy," which has a "nonwhite" enrollment of 99%. See App. in No. 05-908, p. a; Reply rief in No. 05-908, p. 13, n. 13. That school was founded in 1990 as part of the school board's effort to "increase academic achievement."[12] See African American Academy History, online at http://www. seattleschools.org/schools/aaa/history.htm (all Internet materials as visited June 2, 2007, and available in Clerk of Court's case file). According to the school's most
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Parents Involved in Community Schools v. Seattle School Dist. No. 1
|
https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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Clerk of Court's case file). According to the school's most recent annual report, "[a]cademic excellence" is its "primary goal." See African American Academy 200 Annual Report, p. 2, online at http://www.seattleschools.org/area/ siso/reports/anrep/altern/938.pdf. This racially imbalanced environment has reportedly produced test scores "higher across all grade levels in reading, writing and math." Contrary to what the dissent would have predicted, see post, at 38-39, the children in Seattle's African American Academy have shown gains when placed in a "highly segregated" environment. Given this tenuous relationship between forced racial mixing and improved educational results for black children, the dissent cannot plausibly maintain that an educational element supports the integration interest, let alone makes it compelling.[13] See 515 U. S., -122 ("[T]here is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment"). Perhaps recognizing as much, the dissent argues that the social science evidence is "strong enough to permit a democratically elected school board reasonably to determine that this interest is a compelling one." Post, at 38. This assertion is inexplicable. It is not up to the school boardsthe very government entities whose race-based practices we must strictly scrutinizeto determine what interests qualify as compelling under the Fourteenth Amendment to the United States Constitution. Rather, this Court must assess independently the nature of the interest asserted and the evidence to support it in order to determine whether it qualifies as compelling under our precedents. In making such a determination, we have deferred to state authorities only once, see -330, and that deference was prompted by factors uniquely relevant to higher education. The dissent's proposed testwhether sufficient social science evidence supports a government unit's conclusion that the interest it asserts is compellingcalls to mind the rational-basis standard of review the dissent purports not to apply, post, at 3-37. See Furthermore, it would leave our equal-protection jurisprudence at the mercy of elected government officials evaluating the evanescent views of a handful of social scientists. To adopt the dissent's deferential approach would be to abdicate our constitutional responsibilities.[14] 3 Finally, the dissent asserts a "democratic element" to the integration interest. It defines the "democratic element" as "an interest in producing an educational environment that reflects the `pluralistic society' in which our children will live." Post, at 39.[15] Environmental reflection, though, is just another way to say racial balancing. And "[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake." "This the Constitution forbids." ; ; 503 U.
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Parents Involved in Community Schools v. Seattle School Dist. No. 1
|
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own sake." "This the Constitution forbids." ; ; 503 U. S., at Navigating around that inconvenient authority, the dissent argues that the racial balancing in these plans is not an end in itself but is instead intended to "teac[h] children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation." Post, at 39-40. These "generic lessons in socialization and good citizenship" are too sweeping to qualify as compelling interests. And they are not "uniquely relevant" to schools or "uniquely `teachable' in a formal educational setting." Therefore, if governments may constitutionally use racial balancing to achieve these aspirational ends in schools, they may use racial balancing to achieve similar goals at every levelfrom state-sponsored 4-H clubs, see (198) to the state civil service. See -348 (opinion of SCALIA, J.). Moreover, the democratic interest has no durational limit, contrary to 's command. See ; see also U. S., ; 47 U. S., 5 In other words, it will always be important for students to learn cooperation among the races. If this interest justifies race-conscious measures today, then logically it will justify race-conscious measures forever. Thus, the democratic interest, limitless in scope and "timeless in [its] ability to affect the future," cannot justify government race-based decisionmaking.[1] In addition to these defects, the democratic element of the integration interest fails on the dissent's own terms. The dissent again relies upon social science research to support the proposition that state-compelled racial mixing teaches children to accept cooperation and improves racial attitudes and race relations. Here again, though, the dissent overstates the data that supposedly support the interest. The dissent points to data that indicate that "black and white students in desegregated schools are less racially prejudiced than those in segregated schools." Post, at 40 y the dissent's account, improvements in racial attitudes depend upon the increased contact between black and white students thought to occur in more racially balanced schools. There is no guarantee, however, that students of different races in the same school will actually spend time with one another. Schools frequently group students by academic ability as an aid to efficient instruction, but such groupings often result in classrooms with high concentrations of one race or another. See, e.g., Yonezawa, Wells, & Serna, Choosing Tracks: "Freedom of Choice" in Detracting Schools, 39 Am. Ed. Research J., No. 1, p. 38 ; Mickelson, Subverting : First- and Second-Generation Segregation in the Charlotte-Mecklenburg Schools, 38 Am. Ed. Research J., No. 2, pp. 233-234 (Summer 2001) (describing this effect in
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No. 2, pp. 233-234 (Summer 2001) (describing this effect in schools in Charlotte, North Carolina). In addition to classroom separation, students of different races within the same school may separate themselves socially. See Hallinan & Williams, Interracial Friendship Choices in Secondary Schools, 54 Am. Sociological Rev., No. 1, pp. 72-7 ; see also Clotfelter, Interracial Contact in High School Extracurricular Activities, 34 Urban Rev., No. 1, pp. 41-43 Therefore, even supposing interracial contact leads directly to improvements in racial attitudes and race relations, a program that assigns students of different races to the same schools might not capture those benefits. Simply putting students together under the same roof does not necessarily mean that the students will learn together or even interact. Furthermore, it is unclear whether increased interracial contact improves racial attitudes and relations.[17] One researcher has stated that "the reviews of desegregation and intergroup relations were unable to come to any conclusion about what the probable effects of desegregation were [;] virtually all of the reviewers determined that few, if any, firm conclusions about the impact of desegregation on intergroup relations could be drawn." Schofield, School Desegregation and Intergroup Relations: A Review of the Literature, in 17 Review of Research in Education 35 (G. Grant ed. 1991). Some studies have even found that a deterioration in racial attitudes seems to result from racial mixing in schools. See N. St. John, School Desegregation Outcomes for Children 7-8 (1975) ("A glance at [the data] shows that for either race positive findings are less common than negative findings"); Stephan, The Effects of School Desegregation: An Evaluation 30 Years After rown, in Advances in Applied Social Psychology 183-18 (M. Saks & L. Saxe eds. 198). Therefore, it is not nearly as apparent as the dissent suggests that increased interracial exposure automatically leads to improved racial attitudes or race relations. Given our case law and the paucity of evidence supporting the dissent's belief that these plans improve race relations, no democratic element can support the integration interest.[18] 4 The dissent attempts to buttress the integration interest by claiming that it follows a fortiori from the interest this Court recognized as compelling in Post, at 41. Regardless of the merit of the compelling interest recognized in that case cannot support these plans. recognized a compelling interest in a law school's attainment of a diverse student 539 U.S., This interest was critically dependent upon features unique to higher education: "the expansive freedoms of speech and thought associated with the university environment," the "special niche in our constitutional tradition" occupied by universities, and "[t]he freedom of a
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constitutional tradition" occupied by universities, and "[t]he freedom of a university to make its own judgments as to education[,] includ[ing] the selection of its student " None of these features is present in elementary and secondary schools. Those schools do not select their own students, and education in the elementary and secondary environment generally does not involve the free interchange of ideas thought to be an integral part of higher education. See 42 F.3d, at 1208 Extending to this context would require us to cut that holding loose from its theoretical moorings. Thus, only by ignoring 's reasoning can the dissent claim that recognizing a compelling interest in these cases is an a fortiori application of C Stripped of the baseless and novel interests the dissent asserts on their behalf, the school boards cannot plausibly maintain that their plans further a compelling interest. As I explained in only "those measures the State must take to provide a bulwark against anarchy or to prevent violence" and "a government's effort to remedy past discrimination for which it is responsible" constitute compelling interests. -352, 353. Neither of the parties has arguednor could theythat race-based student assignment is necessary to provide a bulwark against anarchy or to prevent violence. And as I explained above, the school districts have no remedial interest in pursuing these programs. See Part I, Accordingly, the school boards cannot satisfy strict scrutiny. These plans are unconstitutional. III Most of the dissent's criticisms of today's result can be traced to its rejection of the color-blind Constitution. See post, The dissent attempts to marginalize the notion of a color-blind Constitution by consigning it to me and Members of today's plurality.[19] See ibid.; see also post, at 1. ut I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan's view in : "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." 13 U.S. 537, (189) And my view was the rallying cry for the lawyers who litigated rown. See, e.g., rief for Appellants in rown v. oard of Education, O. T. 1953, Nos. 1, 2, and 4 p. 5 ("That the Constitution is color blind is our dedicated belief"); rief for Appellants in rown v. oard of Education, O. T. 1952, No. 1, p. 5 ("The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone");[20] see also In Memoriam: Honorable Thurgood Marshall, Proceedings of the ar and Officers of the Supreme Court of the United States, X (1993) (remarks of Judge Motley) ("Marshall had a `ible'
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X (1993) (remarks of Judge Motley) ("Marshall had a `ible' to which he turned during his most depressed moments. The `ible' would be known in the legal community as the first Mr. Justice Harlan's dissent in 13 U.S. 537, (189). I do not know of any opinion which buoyed Marshall more in his pre-rown days"). The dissent appears to pin its interpretation of the Equal Protection Clause to current societal practice and expectations, deference to local officials, likely practical consequences, and reliance on previous statements from this and other courts. Such a view was ascendant in this Court's jurisprudence for several decades. It first appeared in where the Court asked whether a state law providing for segregated railway cars was "a reasonable regulation." 13 U.S., at 550. The Court deferred to local authorities in making its determination, noting that in inquiring into reasonableness "there must necessarily be a large discretion on the part of the legislature." The Court likewise paid heed to societal practices, local expectations, and practical consequences by looking to "the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order." Guided by these principles, the Court concluded: "[W]e cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia." The segregationists in rown embraced the arguments the Court endorsed in Though rown decisively rejected those arguments, today's dissent replicates them to a distressing extent. Thus, the dissent argues that "[e]ach plan embodies the results of local experience and community consultation." Post, at 47. Similarly, the segregationists made repeated appeals to societal practice and expectation. See, e.g., rief for Appellees on Reargument in riggs v. Elliott, O. T. 1953, No. 2, p. 7 ("[A] State has power to establish a school system which is capable of efficient administration, taking into account local problems and conditions").[21] The dissent argues that "weight [must be given] to a local school board's knowledge, expertise, and concerns," post, at 48, and with equal vigor, the segregationists argued for deference to local authorities. See, e.g., rief for Kansas on Reargument in rown v. oard of Education, O. T. 1953, No. 1, p. 14 ("We advocate only a concept of constitutional law that permits determinations of state and local policy to be made on state and local levels. We defend only the validity of
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state and local levels. We defend only the validity of the statute that enables the Topeka oard of Education to determine its own course").[22] The dissent argues that today's decision "threatens to substitute for present calm a disruptive round of race-related litigation," post, at 2, and claims that today's decision "risks serious harm to the law and for the Nation," post, at 5. The segregationists also relied upon the likely practical consequences of ending the state-imposed system of racial separation. See, e.g., rief for Appellees on Reargument in Davis v. County School oard, O. T. 1953, No. 3, p. 37 ("Yet a holding that school segregation by race violates the Constitution will result in upheaval in all of those places not now subject to Federal judicial scrutiny. This Court has made many decisions of widespread effect; none would affect more people more directly in more fundamental interests and, in fact, cause more chaos in local government than a reversal of the decision in this case").[23] And foreshadowing today's dissent, the segregationists most heavily relied upon judicial precedent. See, e.g., rief for Appellees on Reargument in riggs v. Elliott, O. T. 1953, No. 2, p. 59 ("[I]t would be difficult indeed to find a case so favored by precedent as is the case for South Carolina here").[24] The similarities between the dissent's arguments and the segregationists' arguments do not stop there. Like the dissent, the segregationists repeatedly cautioned the Court to consider practicalities and not to embrace too theoretical a view of the Fourteenth Amendment.[25] And just as the dissent argues that the need for these programs will lessen over time, the segregationists claimed that reliance on segregation was lessening and might eventually end.[2] What was wrong in 1954 cannot be right today.[27] Whatever else the Court's rejection of the segregationists' arguments in rown might have established, it certainly made clear that state and local governments cannot take from the Constitution a right to make decisions on the basis of race by adverse possession. The fact that state and local governments had been discriminating on the basis of race for a long time was irrelevant to the rown Court. The fact that racial discrimination was preferable to the relevant communities was irrelevant to the rown Court. And the fact that the state and local governments had relied on statements in this Court's opinions was irrelevant to the rown Court. The same principles guide today's decision. None of the considerations trumpeted by the dissent is relevant to the constitutionality of the school boards' race-based plans because no contextual detailor collection of contextual
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boards' race-based plans because no contextual detailor collection of contextual details, post, at 2-22-can "provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race." 515 U. S.,[28] In place of the color-blind Constitution, the dissent would permit measures to keep the races together and proscribe measures to keep the races apart.[29] See post, at 28-34, 4-5. Although no such distinction is apparent in the Fourteenth Amendment, the dissent would constitutionalize today's faddish social theories that embrace that distinction. The Constitution is not that malleable. Even if current social theories favor classroom racial engineering as necessary to "solve the problems at hand," post, at 21, the Constitution enshrines principles independent of social theories. See 13 U. S., at ("The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time ut in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens"). Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories.[30] See, e.g., Dred Can we really be sure that the racial theories that motivated Dred Scott and are a relic of the past or that future theories will be nothing ut beneficent and progressive? That is a gamble I am unwilling to take, and it is one the Constitution does not allow. * * * The plans before us base school assignment decisions on students' race. ecause "[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens," such race-based decisionmaking is unconstitutional. at I concur in THE CHIEF JUSTICE's opinion so holding. JUSTICE KENNEDY, concurring in part and concurring in the judgment. The Nation's schools strive to teach that our strength comes from people of different races, creeds, and cultures uniting in commitment to the freedom of all. In these cases two school districts in different parts of the country seek to teach that principle by having classrooms that reflect the racial makeup of the surrounding community. That the school districts consider these plans to be necessary should remind us our highest aspirations are yet unfulfilled. ut the solutions mandated by these school districts must themselves be lawful. To make race matter now so that it might not matter later may entrench the very prejudices we
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might not matter later may entrench the very prejudices we seek to overcome. In my view the state-mandated racial classifications at issue, official labels proclaiming the race of all persons in a broad class of citizenselementary school students in one case, high school students in anotherare unconstitutional as the cases now come to us. I agree with THE CHIEF JUSTICE that we have jurisdiction to decide the cases before us and join Parts I and II of the Court's opinion. I also join Parts IIIA and IIIC for reasons provided below. My views do not allow me to join the balance of the opinion by THE CHIEF JUSTICE, which seems to me to be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause. JUSTICE REYER's dissenting opinion, on the other hand, rests on what in my respectful submission is a misuse and mistaken interpretation of our precedents. This leads it to advance propositions that, in my view, are both erroneous and in fundamental conflict with basic equal protection principles. As a consequence, this separate opinion is necessary to set forth my conclusions in the two cases before the Court. I The opinion of the Court and JUSTICE REYER's dissenting opinion (hereinafter dissent) describe in detail the history of integration efforts in Louisville and Seattle. These plans classify individuals by race and allocate benefits and burdens on that basis; and as a result, they are to be subjected to strict scrutiny. See -50 ; ante, at 11. The dissent finds that the school districts have identified a compelling interest in increasing diversity, including for the purpose of avoiding racial isolation. See post, at 37-45. The plurality, by contrast, does not acknowledge that the school districts have identified a compelling interest here. See ante, at 17-25. For this reason, among others, I do not join Parts III and IV. Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue. It is well established that when a governmental policy is subjected to strict scrutiny, "the government has the burden of proving that racial classifications `are narrowly tailored measures that further compelling governmental interests.'" ). "Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are `benign' or `remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." U.S. 49, And the inquiry into less restrictive alternatives demanded by the narrow tailoring analysis requires in many cases a thorough
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the narrow tailoring analysis requires in many cases a thorough understanding of how a plan works. The government bears the burden of justifying its use of individual racial classifications. As part of that burden it must establish, in detail, how decisions based on an individual student's race are made in a challenged governmental program. The Jefferson County oard of Education fails to meet this threshold mandate. Petitioner Crystal Meredith challenges the district's decision to deny her son Joshua McDonald a requested transfer for his kindergarten enrollment. The district concedes it denied his request "under the guidelines," which is to say, on the basis of Joshua's race. rief for Respondents in No. 05-915, p. 10; see also App. in No. 05-915, p. 97. Yet the district also maintains that the guidelines do not apply to "kindergartens," rief for Respondents in No. 05-915, at 4, and it fails to explain the discrepancy. Resort to the record, including the parties' Stipulation of Facts, further confuses the matter. See App. in No. 05-915, at 43 ("Transfer applications can be denied because of lack of available space or, for students in grades other than Primary 1 (kindergarten), the racial guidelines in the District's current student assignment plan"); ; see also Stipulation of Facts in No. 3:02-CV-0020-JGH; Doc. 32, Exh. 44, p. (2003-04 Jefferson County Public Schools Elementary Student Assignment Application, Section ) ("Assignment is made to a school for Primary 1 (Kindergarten) through Grade Five as long as racial guidelines are maintained. If the Primary 1 (Kindergarten) placement does not enhance racial balance, a new application must be completed for Primary 2 (Grade One)"). The discrepancy identified is not some simple and straightforward error that touches only upon the peripheries of the district's use of individual racial classifications. To the contrary, Jefferson County in its briefing has explained how and when it employs these classifications only in terms so broad and imprecise that they cannot withstand strict scrutiny. See, e.g., rief for Respondents in No. 05-915, at 4-10. While it acknowledges that racial classifications are used to make certain assignment decisions, it fails to make clear, for example, who makes the decisions; what if any oversight is employed; the precise circumstances in which an assignment decision will or will not be made on the basis of race; or how it is determined which of two similarly situated children will be subjected to a given race-based decision. See ibid.; see also App. in No. 05-915, at 38, 42 (indicating that decisions are "based on the racial guidelines" without further explanation); (setting forth the blanket mandate that
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guidelines" without further explanation); (setting forth the blanket mandate that "[s]chools shall work cooperatively with each other and with central office to ensure that enrollment at all schools [in question] is within the racial guidelines annually and to encourage that the enrollment at all schools progresses toward the midpoint of the guidelines"); at 43, 7-77, 81-83; 837-845, 855-82 When litigation, as here, involves a "complex, comprehensive plan that contains multiple strategies for achieving racially integrated schools," rief for Respondents in No. 05-915, at 4, these ambiguities become all the more problematic in light of the contradictions and confusions that result. Compare, e.g., App. in No. 05-915, at 37 ("Each [Jefferson County] school has a designated geographic attendance area, which is called the `resides area' of the school[, and each] such school is the `resides school' for those students whose parent's or guardian's residence address is within the school's geographic attendance area"); ; and rief for Respondents in No. 05-915, at 5 ("There are no selection criteria for admission to [an elementary school student's] resides school, except attainment of the appropriate age and completion of the previous grade"), with App. in No. 05-915, at 38 ("Decisions to assign students to schools within each cluster are based on available space within the [elementary] schools and the racial guidelines in the District's current student assignment plan"); One can attempt to identify a construction of Jefferson County's student assignment plan that, at least as a logical matter, complies with these competing propositions; but this does not remedy the underlying problem. Jefferson County fails to make clear to this Courteven in the limited respects implicated by Joshua's initial assignment and transfer denialwhether in fact it relies on racial classifications in a manner narrowly tailored to the interest in question, rather than in the far-reaching, inconsistent, and ad hoc manner that a less forgiving reading of the record would suggest. When a court subjects governmental action to strict scrutiny, it cannot construe ambiguities in favor of the State. As for the Seattle case, the school district has gone further in describing the methods and criteria used to determine assignment decisions on the basis of individual racial classifications. See, e.g., rief for Respondents in No. 05908, p. 5-11. The district, nevertheless, has failed to make an adequate showing in at least one respect. It has failed to explain why, in a district composed of a diversity of races, with fewer than half of the students classified as "white," it has employed the crude racial categories of "white" and "non-white" as the basis for its assignment decisions. See,
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and "non-white" as the basis for its assignment decisions. See, e.g., The district has identified its purposes as follows: "(1) to promote the educational benefits of diverse school enrollments; (2) to reduce the potentially harmful effects of racial isolation by allowing students the opportunity to opt out of racially isolated schools; and (3) to make sure that racially segregated housing patterns did not prevent non-white students from having equitable access to the most popular over-subscribed schools." Yet the school district does not explain how, in the context of its diverse student population, a blunt distinction between "white" and "non-white" furthers these goals. As the Court explains, "a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent AsianA-merican, 25 percent African-American, 25 percent Latino, and 20 percent white students would not." Ante, -1; see also rief for United States as Amicus Curiae in No. 05-908, pp. 13-14. Far from being narrowly tailored to its purposes, this system threatens to defeat its own ends, and the school district has provided no convincing explanation for its design. Other problems are evident in Seattle's system, but there is no need to address them now. As the district fails to account for the classification system it has chosen, despite what appears to be its ill fit, Seattle has not shown its plan to be narrowly tailored to achieve its own ends; and thus it fails to pass strict scrutiny. II Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does. This is by way of preface to my respectful submission that parts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality's postulate that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis
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basis of race is to stop discriminating on the basis of race," ante, at 40-41, is not sufficient to decide these cases. Fifty years of experience since rown v. oard of Education, should teach us that the problem before us defies so easy a solution. School districts can seek to reach rown's objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken. The statement by Justice Harlan that "[o]ur Constitution is color-blind" was most certainly justified in the context of his dissent in 13 U.S. 537, (189). The Court's decision in that case was a grievous error it took far too long to overrule. of course, concerned official classification by race applicable to all persons who sought to use railway carriages. And, as an aspiration, Justice Harlan's axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle. In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. 539 U.S. 30 ; If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race. School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. See ush v. Vera, (199) ("Strict scrutiny does not apply merely because redistricting is
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(199) ("Strict scrutiny does not apply merely because redistricting is performed with consciousness of race. Electoral district lines are `facially race neutral' so a more searching inquiry is necessary before strict scrutiny can be found applicable in redistricting cases than in cases of `classifications based explicitly on race'" (quoting )). Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly. Each respondent has asserted that its assignment of individual students by race is permissible because there is no other way to avoid racial isolation in the school districts. Yet, as explained, each has failed to provide the support necessary for that proposition. Cf. U. S., at 501 And individual racial classifications employed in this manner may be considered legitimate only if they are a last resort to achieve a compelling interest. See In the cases before us it is noteworthy that the number of students whose assignment depends on express racial classifications is limited. I join Part IIIC of the Court's opinion because I agree that in the context of these plans, the small number of assignments affected suggests that the schools could have achieved their stated ends through different means. These include the facially race-neutral means set forth above or, if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component. The latter approach would be informed by though of course the criteria relevant to student placement would differ based on the age of the students, the needs of the parents, and the role of the schools. III The dissent rests on the assumptions that these sweeping race-based classifications of persons are permitted by existing precedents; that its confident endorsement of race categories for each child in a large segment of the community presents no danger to individual freedom in other, prospective realms of governmental regulation; and that the racial classifications used here cause no hurt or anger of the type the Constitution prevents. Each of these premises is, in my respectful view, incorrect. A The dissent's reliance on this Court's precedents to justify the explicit, sweeping, classwide racial classifications at issue here is a misreading of our authorities that, it appears to
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is a misreading of our authorities that, it appears to me, tends to undermine well-accepted principles needed to guard our freedom. And in his critique of that analysis, I am in many respects in agreement with THE CHIEF JUSTICE. The conclusions he has set forth in Part IIIA of the Court's opinion are correct, in my view, because the compelling interests implicated in the cases before us are distinct from the interests the Court has recognized in remedying the effects of past intentional discrimination and in increasing diversity in higher education. See ante, at 12-13. As the Court notes, we recognized the compelling nature of the interest in remedying past intentional discrimination in 503 U.S. 47, and of the interest in diversity in higher education in At the same time, these compelling interests, in my view, do help inform the present inquiry. And to the extent the plurality opinion can be interpreted to foreclose consideration of these interests, I disagree with that reasoning. As to the dissent, the general conclusions upon which it relies have no principled limit and would result in the broad acceptance of governmental racial classifications in areas far afield from schooling. The dissent's permissive strict scrutiny (which bears more than a passing resemblance to rational-basis review) could invite widespread governmental deployment of racial classifications. There is every reason to think that, if the dissent's rationale were accepted, Congress, assuming an otherwise proper exercise of its spending authority or commerce power, could mandate either the Seattle or the Jefferson County plans nationwide. There seems to be no principled rule, moreover, to limit the dissent's rationale to the context of public schools. The dissent emphasizes local control, see post, at 48-49, the unique history of school desegregation, see post, at 2, and the fact that these plans make less use of race than prior plans, see post, at 57, but these factors seem more rhetorical than integral to the analytical structure of the opinion. This brings us to the dissent's reliance on the Court's opinions in v. ollinger, and 539 U.S. 30. If today's dissent said it was adhering to the views expressed in the separate opinions in and see (REYER, J., concurring in judgment); ; 1 ; 8 (GINSURG, J., dissenting); (GINSURG, J., concurring), that would be understandable, and likely within the traditionto be invoked, in my view, in rare instancesthat permits us to maintain our own positions in the face of stare decisis when fundamental points of doctrine are at stake. See, e.g., Federal Maritime To say, however, that we must ratify the racial classifications here
|
Justice Thomas
| 2,007 | 1 |
concurring
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Parents Involved in Community Schools v. Seattle School Dist. No. 1
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https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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say, however, that we must ratify the racial classifications here at issue based on the majority opinions in and is, with all respect, simply baffling. involved a system where race was not the entire classification. The procedures in placed much less reliance on race than do the plans at issue here. The issue in arose, moreover, in the context of college admissions where students had other choices and precedent supported the proposition that First Amendment interests give universities particular latitude in defining diversity. See Regents of Univ. of 438 U.S. 25, Even so the race factor was found to be invalid. If is to be the measure, the racial classification systems here are a fortiori invalid. If the dissent were to say that college cases are simply not applicable to public school systems in kindergarten through high school, this would seem to me wrong, but at least an arguable distinction. Under no fair reading, though, can the majority opinion in be cited as authority to sustain the racial classifications under consideration here. The same must be said for the controlling opinion in There the Court sustained a system that, it found, was flexible enough to take into account "all pertinent elements of diversity," and considered race as only one factor among many, Seattle's plan, by contrast, relies upon a mechanical formula that has denied hundreds of students their preferred schools on the basis of three rigid criteria: placement of siblings, distance from schools, and race. If those students were considered for a whole range of their talents and school needs with race as just one consideration, would have some application. That, though, is not the case. The only support today's dissent can draw from must be found in its various separate opinions, not in the opinion filed for the Court. To uphold these programs the Court is asked to brush aside two concepts of central importance for determining the validity of laws and decrees designed to alleviate the hurt and adverse consequences resulting from race discrimination. The first is the difference between de jure and de facto segregation; the second, the presumptive invalidity of a State's use of racial classifications to differentiate its treatment of individuals. In the immediate aftermath of rown the Court addressed other instances where laws and practices enforced de jure segregation. See, e.g., (197) ; New Orleans City Park Improvement (1) (public parks); Gayle v. rowder, (195) (buses); (golf courses); Mayor of altimore v. Dawson, (beaches). ut with reference to schools, the effect of the legal wrong proved most difficult to correct. To remedy the wrong,
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Justice Thomas
| 2,007 | 1 |
concurring
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Parents Involved in Community Schools v. Seattle School Dist. No. 1
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https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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wrong proved most difficult to correct. To remedy the wrong, school districts that had been segregated by law had no choice, whether under court supervision or pursuant to voluntary desegregation efforts, but to resort to extraordinary measures including individual student and teacher assignment to schools based on race. See, e.g., ; see also U. S., (noting that racial classifications "may be the only adequate remedy after a judicial determination that a State or its instrumentality has violated the Equal Protection Clause"). So it was, as the dissent observes, see post, 14, that Louisville classified children by race in its school assignment and busing plan in the 1970's. Our cases recognized a fundamental difference between those school districts that had engaged in de jure segregation and those whose segregation was the result of other factors. School districts that had engaged in de jure segregation had an affirmative constitutional duty to desegregate; those that were de facto segregated did not. Compare (198), with The distinctions between de jure and de facto segregation extended to the remedies available to governmental units in addition to the courts. For example, in 47 U.S. 27, (198), the plurality noted: "This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination." The Court's decision in reinforced the difference between the remedies available to redress de facto and de jure discrimination: "To accept [a] claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for `remedial relief' for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs." -50. From the standpoint of the victim, it is true, an injury stemming from racial prejudice can hurt as much when the demeaning treatment based on race identity stems from bias masked deep within the social order as when it is imposed by law. The distinction between government and private action, furthermore, can be amorphous both as a historical matter and as a matter of present-day finding of fact. Laws arise from a culture and vice versa. Neither can assign to the other all responsibility for persisting injustices. Yet, like so many other legal categories that can overlap in some instances, the
|
Justice Thomas
| 2,007 | 1 |
concurring
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Parents Involved in Community Schools v. Seattle School Dist. No. 1
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https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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other legal categories that can overlap in some instances, the constitutional distinction between de jure and de facto segregation has been thought to be an important one. It must be conceded its primary function in school cases was to delimit the powers of the Judiciary in the fashioning of remedies. See, e.g., at 74. The distinction ought not to be altogether disregarded, however, when we come to that most sensitive of all racial issues, an attempt by the government to treat whole classes of persons differently based on the government's systematic classification of each individual by race. There, too, the distinction serves as a limit on the exercise of a power that reaches to the very verge of constitutional authority. Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake. The allocation of governmental burdens and benefits, contentious under any circumstances, is even more divisive when allocations are made on the basis of individual racial classifications. See, e.g., Regents of Univ. of 438 U.S. 25 ; Notwithstanding these concerns, allocation of benefits and burdens through individual racial classifications was found sometimes permissible in the context of remedies for de jure wrong. Where there has been de jure segregation, there is a cognizable legal wrong, and the courts and legislatures have broad power to remedy it. The remedy, though, was limited in time and limited to the wrong. The Court has allowed school districts to remedy their prior de jure segregation by classifying individual students based on their race. See North Carolina d. of Ed. v. 45-4 The limitation of this power to instances where there has been de jure segregation serves to confine the nature, extent, and duration of governmental reliance on individual racial classifications. The cases here were argued upon the assumption, and come to us on the premise, that the discrimination in question did not result from de jure actions. And when de facto discrimination is at issue our tradition has been that the remedial rules are different. The State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary howing not present here. C The dissent refers to an opinion filed by Judge Kozinski in one of the cases now before us, and that opinion relied upon an opinion filed by Chief Judge oudin in a case presenting an issue similar to the one here. See post, at 35 )). Though this may oversimplify the matter a bit, one of the main concerns underlying those opinions was
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Justice Thomas
| 2,007 | 1 |
concurring
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Parents Involved in Community Schools v. Seattle School Dist. No. 1
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https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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bit, one of the main concerns underlying those opinions was this: If it is legitimate for school authorities to work to avoid racial isolation in their schools, must they do so only by indirection and general policies? Does the Constitution mandate this inefficient result? Why may the authorities not recognize the problem in candid fashion and solve it altogether through resort to direct assignments based on student racial classifications? So, the argument proceeds, if race is the problem, then perhaps race is the solution. The argument ignores the dangers presented by individual classifications, dangers that are not as pressing when the same ends are achieved by more indirect means. When the government classifies an individual by race, it must first define what it means to be of a race. Who exactly is white and who is nonwhite? To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree. The idea that if race is the problem, race is the instrument with which to solve it cannot be accepted as an analytical leap forward. And if this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it. Under our Constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin. * * * This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted
|
Justice Thomas
| 2,007 | 1 |
concurring
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Parents Involved in Community Schools v. Seattle School Dist. No. 1
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https://www.courtlistener.com/opinion/145702/parents-involved-in-community-schools-v-seattle-school-dist-no-1/
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should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification. Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school's supply and another's demand. That statement, to be sure, invites this response: A sense of stigma may already become the fate of those separated out by circumstances beyond their immediate control. ut to this the replication must be: Even so, measures other than differential treatment based on racial typing of individuals first must be exhausted. The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic back-grounds. Due to a variety of factorssome influenced by government, some notneighborhoods in our communities do not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications. With this explanation I concur in the judgment of the Court.
|
Justice Scalia
| 1,990 | 9 |
majority
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Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp.
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https://www.courtlistener.com/opinion/112342/pavelic-leflore-v-marvel-entertainment-group-div-of-cadence-industries/
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Federal Rule of Civil Procedure 11 provides in part: "If a pleading, motion, or other paper is signed in violation of this rule, the court shall impose upon the person who signed it an appropriate sanction" In this case we must determine whether Rule 11 authorizes a court to impose a sanction not only against the individual attorney who signed, but also against that attorney's law firm. I The action giving rise to the current controversy was instituted by plaintiff Northern J. Calloway against respondents for willful copyright infringement of his motion picture script and other related claims. The original complaint signed and filed by Calloway's attorney, Ray L. LeFlore alleged that Calloway had developed an idea for a motion picture and written a script, and that respondents had begun to develop this work without his permission. Respondents filed a motion to dismiss, pointing to a series of documents annexed to the complaint that gave them the right to develop the work commercially. The District Court dismissed the complaint (with leave to refile), not on the ground that the documents authorized the alleged infringement, but because Calloway's complaint had failed to specify the registration number of his copyright and the dates upon which the alleged acts of infringement had occurred. An amended complaint, again signed by LeFlore, was filed several weeks later. In addition to remedying the defects that were the basis of dismissal, it newly asserted that Calloway's signatures on the documents purporting to grant an option had been forged by respondents, and included that among the actions for which damages were sought. Plaintiff relied on this forgery claim in opposing respondents' motions to dismiss and motions for summary judgment. *122 In October 1984, LeFlore joined with Radovan Pavelic to form the law partnership of Pavelic & LeFlore. Thereafter, all court papers in the case were signed: "Pavelic & LeFlore By /s/ Ray L. LeFlore (A Member of the Firm) Attorneys for Plaintiff." Several of these papers, including interrogatory responses and a proposed pretrial order, continued to rely upon the allegation of forgery. At trial, the District Court found insufficient evidence to support that contention, and directed a verdict in favor of respondents on that issue. The jury returned a verdict against plaintiff on all remaining claims. Upon respondents' motion and after a hearing, the District Court imposed a Rule 11 sanction in the amount of $100,000 against Pavelic & LeFlore on the ground that the forgery claim had no basis in fact and had not been investigated sufficiently by counsel. Radovan Pavelic moved to relieve the
|
Justice Scalia
| 1,990 | 9 |
majority
|
Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp.
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https://www.courtlistener.com/opinion/112342/pavelic-leflore-v-marvel-entertainment-group-div-of-cadence-industries/
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investigated sufficiently by counsel. Radovan Pavelic moved to relieve the firm of the sanction, contending that (1) the firm did not exist during a major portion of the litigation and therefore was not fully responsible for the Rule 11 violations, and (2) Rule 11 empowers the court to impose a sanction only upon the attorney who signed the paper, not upon that attorney's law firm. The District Court accepted the first contention, and therefore amended its order to shift half of the sanction from the firm to LeFlore. It rejected the second contention, however, concluding that Rule 11 sanctions may be imposed "on both the individual attorney and the law firm on whose behalf he signed the papers." The Court of Appeals for the Second Circuit affirmed, thus placing itself in square disagreement with an earlier holding of the Fifth Circuit that Rule 11 authorizes sanctions against no attorney other than the individual lawyer or lawyers who sign court papers, see Robinson We granted certiorari, II We give the Federal Rules of Civil Procedure their plain meaning, and generally with them as with a statute, "[w]hen we find the terms unambiguous, judicial inquiry is complete," The specific text of Rule 11 at issue here is the provision that requires a court, when a paper is signed in violation of the Rule, to "impose upon the person who signed it. an appropriate sanction." Thus viewed in isolation, the phrase "person who signed" is ambiguous as to the point before us today. That is not so, however, when it is read in the total context of all the provisions of Rule 11 dealing with the signing of filings. Those provisions (all of Rule 11 except two sentences) are as follows: "Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party's pleading, motion, or other paper and state the party's address. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless
|
Justice Scalia
| 1,990 | 9 |
majority
|
Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp.
|
https://www.courtlistener.com/opinion/112342/pavelic-leflore-v-marvel-entertainment-group-div-of-cadence-industries/
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as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention *124 of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee." In other contexts the phrase "the person who signed it" might bear the somewhat technical legal meaning of the natural or juridical person in whose name or on whose behalf the paper was signed; but in a paragraph beginning with a requirement of individual signature, and then proceeding to discuss the import and consequences of signature, we think references to the signer in the later portions must reasonably be thought to connote the individual signer mentioned at the outset. It is as strange to think that the phrase "person who signed" in the last sentence refers to the partnership represented by the signing attorney, as it would be to think that the earlier phrase "the signer has read the pleading" refers to a reading not necessarily by the individual signer but by someone in the partnership; or that the earlier phrase "[i]f a pleading is not signed" refers not to an absence of individual signature but to an absence of signature on behalf of the partnership. Just as the requirement of signature is imposed upon the individual, we think the recited import and consequences of signature run as to him. Respondents' interpretation is particularly hard to square with the text since they do not assert that "the person who signed," and who "shall" be sanctioned under the Rule, is only the partnership (that would obviously be unacceptable), but rather is either the partnership or the individual attorney, or both, at the court's option. But leaving that option unexpressed seems quite inconsistent with the extreme care with which the Rule, in the very same sentence, makes clear *125 that the mandatory sanction must extend to "the person who signed [the paper], a represented party, or both." It is surely puzzling why the text would be so precise about that but leave to speculation whether only the individual
|
Justice Scalia
| 1,990 | 9 |
majority
|
Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp.
|
https://www.courtlistener.com/opinion/112342/pavelic-leflore-v-marvel-entertainment-group-div-of-cadence-industries/
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about that but leave to speculation whether only the individual attorney or his firm or both can be sanctioned. The puzzlement does not exist, of course, if "the person who signed" means only the individual attorney. Respondents appeal to "long and firmly established legal principles of partnership and agency," Brief for Respondents Marvel Entertainment Group et al. 29, under which all the members of a partnership are liable for the authorized acts of a partner or employee, see Restatement (Second) of Agency 140 (1958). We are not dealing here, however, with common-law liability, but with a Rule that strikingly departs from normal common-law assumptions such as that of delegability. The signing attorney cannot leave it to some trusted subordinate, or to one of his partners, to satisfy himself that the filed paper is factually and legally responsible; by signing he represents not merely the fact that it is so, but also the fact that he personally has applied his own judgment. Where the text establishes a duty that cannot be delegated, one may reasonably expect it to authorize punishment only of the party upon whom the duty is placed. We think that to be the fair import of the language here. Respondents also rely upon the fact that after formation of the partnership LeFlore's signature was explicitly on behalf of the firm. The simple response is that signature on behalf of the firm was not a signature that could comply with the first sentence of the Rule, and not a signature to which the later portions of the Rule attach consequences. Rule 11 says that papers must be signed "by at least one attorney of record in the attorney's individual name." (Emphasis added.) Even if LeFlore's signature in the fashion indicated had the effect of making the firm and all its partners (including himself) attorneys of record, it is only his signature in his individual name that satisfies the first sentence of the Rule, and *126 it is that signature, in that individual capacity, to which the later portions of the Rule refer. It has long been thought the better practice for the attorney complying with Rule 11 not to sign for his firm, but to sign in his individual name and on his own behalf, with the name of his firm beneath. See Gavit, The New Federal Rules and State Procedure, 25 A. B. A. J. 367, 371 (1939) (Under Rule 11, "the practice for pleadings to be signed in the name of a partnership" is "undesirable" and "improper"). Respondents, and the opinion of the Court of Appeals, rely
|
Justice Scalia
| 1,990 | 9 |
majority
|
Pavelic & LeFlore v. Marvel Entertainment Group, Div. of Cadence Industries Corp.
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https://www.courtlistener.com/opinion/112342/pavelic-leflore-v-marvel-entertainment-group-div-of-cadence-industries/
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Respondents, and the opinion of the Court of Appeals, rely heavily upon the contention that the policies underlying Rule 11 will best be served by holding a law firm accountable for its attorney's violation. In the Court of Appeals' words, "[law firm] responsibility for Rule 11 sanctions will create strong incentives for internal monitoring, and greater monitoring will result in improved pre-filing inquiries and fewer baseless claims." Even if it were entirely certain that liability on the part of the firm would more effectively achieve the purposes of the Rule, we would not feel free to pursue that objective at the expense of a textual interpretation as unnatural as we have described. Our task is to apply the text, not to improve upon it. But in any event it is not at all clear that respondents' strained interpretation would better achieve the purposes of the Rule. It would, to be sure, better guarantee reimbursement of the innocent party for expenses caused by the Rule 11 violation, since the partnership will normally have more funds than the individual signing attorney. The purpose of the provision in question, however, is not reimbursement but "sanction"; and the purpose of Rule 11 as a whole is to bring home to the individual signer his personal, nondelegable responsibility. It is at least arguable that these purposes are better served by a provision which makes clear that, just as the court expects the signer personally and not some nameless person within his law firm to validate the truth and legal reasonableness of the papers filed, so also it will visit *127 upon him personally and not his law firm its retribution for failing in that responsibility. The message thereby conveyed to the attorney, that this is not a "team effort" but in the last analysis yours alone, is precisely the point of Rule 11. Moreover, psychological effect aside, there will be greater economic deterrence upon the signing attorney, who will know for certain that the district court will impose its sanction entirely upon him, and not divert part of it to a partnership of which he may not (if he is only an associate) be a member, or which (if he is a member) may not choose to seek recompense from him. To be sure, the partnership's knowledge that it was subject to sanction might induce it to increase "internal monitoring," but one can reasonably believe that more will be achieved by directly increasing the incentive for the individual signer to take care. Such a belief is at least not so unthinkable
|
Justice White
| 1,972 | 6 |
second_dissenting
|
United States v. Brewster
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https://www.courtlistener.com/opinion/108607/united-states-v-brewster/
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The question presented by this case is not whether bribery or other offensive conduct on the part of Members of Congress must or should go unpunished. No one suggests that the Speech or Debate Clause insulates Senators and Congressmen from accountability for their misdeeds. Indeed, the Clause itself is but one of several constitutional provisions that make clear that Congress has broad powers to try and punish its Members: "[T]he Constitution expressly empowers each House to punish its own members for disorderly behavior. We see no reason to doubt that this punishment may in a proper case be imprisonment, and that it may be for refusal to obey some rule on that subject made by the House for the preservation of order. "So, also, the penalty which each House is authorized to inflict in order to compel the attendance of absent members may be imprisonment, and this may be for a violation of some order or standing rule on that subject. "Each House is by the Constitution made the judge of the election and qualification of its members. In deciding on these it has an undoubted right to examine witnesses and inspect papers, subject to the usual rights of witnesses in such cases; and it may be that a witness would be subject to like punishment at the hands of the body engaged in trying a contested election, for refusing to testify, that he would if the case were pending before a court of judicature. "The House of Representatives has the sole right to impeach officers of the government, and the Senate to try them. Where the question of such impeachment is before either body acting in its appropriate *552 sphere on that subject, we see no reason to doubt the right to compel the attendance of witnesses, and their answer to proper questions, in the same manner and by the use of the same means that courts of justice can in like cases." The sole issue here is in what forum the accounting must take placewhether the prosecution that the Government proposes is consistent with the command that "for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place." U. S. Const., Art. I, 6, cl. 1. The majority disposes of this issue by distinguishing between promise and performance. Even if a Senator or Congressman may not be prosecuted for a corrupt legislative act, the Speech or Debate Clause does not prohibit prosecution for a corrupt promise to perform that act. If a Member of Congress promises to vote for
|
Justice White
| 1,972 | 6 |
second_dissenting
|
United States v. Brewster
|
https://www.courtlistener.com/opinion/108607/united-states-v-brewster/
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act. If a Member of Congress promises to vote for or against a bill in return for money, casts his vote in accordance with the promise and accepts payment, the majority's view is that even though he may not be prosecuted for voting as he did, although the vote was corrupt, the executive may prosecute and the judiciary may try him for the corrupt agreement or for taking the money either under a narrowly drawn statute or one of general application. This distinction between a promise and an act will not withstand scrutiny in terms of the values that the Speech or Debate Clause was designed to secure. The majority agrees that in order to assure the independence and integrity of the legislature and to reinforce the separation of powers so deliberately established by the Founders, the Speech or Debate Clause prevents a legislative act from being the basis of criminal or civil liability. Concededly, a Member of Congress may not be prosecuted or sued for making a speech or voting in *553 committee or on the floor, whether he was paid to do so or not. The majority also appears to embrace the holding in United that a Member of Congress could not be convicted of a conspiracy to defraud the Government where the purposes or motives underlying his conduct as a legislator are called into question. If one follows the mode of the majority's present analysis, the prosecution in was not for speaking, voting, or performing any other legislative act in a particular manner; the criminal act charged was a conspiracy to defraud the United States anterior to any legislative performance. To prove the crime, however, the prosecution introduced evidence that money was paid to make a speech, among other things, and that the speech was made. This, the Court held, violated the Speech or Debate Clause, because it called into question the motives and purposes underlying Congressman 's performance of his legislative duties. The same infirmity inheres in the present indictment, which was founded upon two separate statutes. Title 18 U.S. C. 201 (g) requires proof of a defendant's receipt, or an agreement or attempt to receive, anything of value "for or because of any official act performed or to be performed by him" Of course, not all, or even many, official acts would be legislative acts protected by the Speech or Debate Clause; but whatever the act, the Government must identify it to prove its case. Here we are left in no doubt whatsoever, for the official acts expressly charged in the indictment were in respect
|
Justice White
| 1,972 | 6 |
second_dissenting
|
United States v. Brewster
|
https://www.courtlistener.com/opinion/108607/united-states-v-brewster/
|
official acts expressly charged in the indictment were in respect to "his action, vote and decision on postage rate legislation." Similarly, there is no basis for arguing that the indictment did not contemplate proof of performance of the act, for the indictment in so many words charged the arrangement was "for and because of official acts performed by him in respect to his action, vote and decision on postage rate legislation which had been pending before *554 him in his official capacity." (Emphasis added.) It is this indictment, not some other charge, that was challenged and dismissed by the District Court. Like that court, I would take the Government at its word: it alleged and intended to prove facts that questioned and impugned the motives and purposes underlying specified legislative acts of the Senator and intended to use these facts as a basis for the conviction of the Senator himself. Thus, taking the charge at face value, the indictment represents an attempt to prosecute and convict a Member of Congress not only for taking money but also for performing a legislative act. Moreover, whatever the proof might be, the indictment on its face charged a corrupt undertaking with respect to the performance of legislative conduct that had already occurred and so, without more, "questioned in [some] other Place" the speech and debate of a Member of Congress. Such a charge is precisely the kind that the Senator should not have been called upon to answer if the Speech or Debate Clause is to fulfill its stated purpose. Insofar as it charged crimes under 18 U.S. C. 201 (c) (1), the indictment fares little better. That section requires proof of a corrupt arrangement for the receipt of money and also proof that the arrangement was in return for the defendant "being influenced in his performance of any official act" Whatever the official act may prove to be, the Government cannot prove its case without calling into question the motives of the Member in performing that act, for it must prove that the Member undertook for money to be influenced in that performance. Clearly, if the Government sought to prove its case against a Member of Congress by evidence of a legislative act, conviction could not survive in the face of the holding in But even if an offense under the statute could be established merely by proof of an undertaking to cast a vote, which is not alleged in the indictment or *555 shown at trial to have taken place one way or the other, the motives of the legislator in
|
Justice White
| 1,972 | 6 |
second_dissenting
|
United States v. Brewster
|
https://www.courtlistener.com/opinion/108607/united-states-v-brewster/
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way or the other, the motives of the legislator in performing his duties with respect to the subject matter of the undertaking would nevertheless inevitably be implicated. In charging the offense under 201 (c) (1), the indictment alleged a corrupt arrangement made "in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage legislation which might at any time be pending before him in his official capacity." Again, I would take the Government at its word: it charged and intended to prove facts that could not fail to implicate Senator Brewster's performance of his legislative duties.[*] The use of criminal charges "against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege," United and in applying the privilege "we look particularly to the prophylactic purposes of the clause." Let us suppose that the Executive Branch is informed that private interests are paying a Member of Congress to oppose administration-sponsored legislation. The Congressman is chairman of a key committee where a vote is pending. A representative from the Executive Branch informs the Congressman of the allegations against him, hopes the charges are not true, and expresses confidence that the committee will report the bill and that the Member will support it on the floor. The pressure on the Congressmen, corrupt or not, is undeniable. He *556 will clearly fare better in any future criminal prosecution if he answers the charge of corruption with evidence that he voted contrary to the alleged bargain. Even more compelling is the likelihood that he will not be prosecuted at all if he follows the administration's suggestion and supports the bill. Putting aside the potential for abuse in ill-conceived, mistaken, or false accusations, the Speech or Debate Clause was designed to prevent just such an exercise of executive power. It is no answer to maintain that the potential for abuse does not inhere in a prosecution for a completed bribery transaction where the legislative act has already occurred. A corrupt vote may not be made the object of a criminal prosecution because otherwise the Executive would be armed with power to control the vote in question, if forewarned, or in any event to control other legislative conduct. All of this comes to naught if the executive may prosecute for a promise to vote though not for the vote itself. The same hazards to legislative independence inhere in the two prosecutions. Bribery is most often carried out by prearrangement; if that part of the transaction
|
Justice White
| 1,972 | 6 |
second_dissenting
|
United States v. Brewster
|
https://www.courtlistener.com/opinion/108607/united-states-v-brewster/
|
carried out by prearrangement; if that part of the transaction may be plucked from its context and made the basis of criminal charges, the Speech or Debate Clause loses its force. It will be small comfort for a Congressman to know that he cannot be prosecuted for his vote, whatever it may be, but he can be prosecuted for an alleged agreement even if he votes contrary to the asserted bargain. The realities of the American political system, of which the majority fails to take account, render particularly illusory a Speech or Debate Clause distinction between a promise to perform a legislative act and the act itself. Ours is a representative government. Candidates for office engage in heated contests and the victor is he who receives the greatest number of votes from his constituents. These campaigns are run on *557 platforms that include statements of intention and undertakings to promote certain policies. These promises are geared, at least in part, to the interests of the Congressman's constituency. Members of Congress may be legally free from dictation by the voters, but there is a residual conviction that they should have due regard for the interests of their States or districts, if only because on election day a Member is answerable for his conduct. Serving constituents is a crucial part of a legislator's ongoing duties. Congressmen receive a constant stream of complaints and requests for help or service. Judged by the volume and content of a Congressman's mail, the right to petition is neither theoretical nor ignored. It has never been thought unethical for a Member of Congress whose performance on the job may determine the success of his next campaign not only to listen to the petitions of interest groups in his State or district, which may come from every conceivable group of people, but also to support or oppose legislation serving or threatening those interests. Against this background a second fact of American political life assumes considerable importance for the purposes of this case. Congressional campaigns are most often financed with contributions from those interested in supporting particular Congressmen and their policies. A legislator must maintain a working relationship with his constituents not only to garner votes to maintain his office but to generate financial support for his campaigns. He must also keep in mind the potential effect of his conduct upon those from whom he has received financial support in the past and those whose help he expects or hopes to have in the next campaign. An expectation or hope of future assistance can arise because constituents have indicated
|
Justice White
| 1,972 | 6 |
second_dissenting
|
United States v. Brewster
|
https://www.courtlistener.com/opinion/108607/united-states-v-brewster/
|
hope of future assistance can arise because constituents have indicated that support will be forthcoming if the Member of Congress champions their point of view. *558 Financial support may also arrive later from those who approve of a Congressman's conduct and have an expectation it will continue. Thus, mutuality of support between legislator and constituent is inevitable. Constituent contributions to a Congressman and his support of constituent interests will repeatedly coincide in time or closely follow one another. It will be the rare Congressman who never accepts campaign contributions from persons or interests whose view he has supported or will support, by speech making, voting, or bargaining with fellow legislators. All of this, or most of it, may be wholly within the law and consistent with contemporary standards of political ethics. Nevertheless, the opportunities for an Executive, in whose sole discretion the decision to prosecute rests under the statute before us, to claim that legislative conduct has been sold are obvious and undeniable. These opportunities, inherent in the political process as it now exists, create an enormous potential for executive control of legislative behavior by threats or suggestions of criminal prosecutionprecisely the evil that the Speech or Debate Clause was designed to prevent. Neither the majority opinion nor the statute under which Brewster is charged distinguishes between campaign contributions and payments designed for or put to personal use. To arm the Executive with the power to prosecute for taking political contributions in return for an agreement to introduce or support particular legislation or policies is to vest enormous leverage in the Executive and the courts. Members of Congress may find themselves in the dilemma of being forced to conduct themselves contrary to the interests of those who provide financial support or declining that support. They may also feel constrained to listen less often to the entreaties and demands of potential contributors. The threat of prosecution for supposed missteps that *559 are difficult to define and fall close to the line of what ordinarily is considered permissible, even necessary, conduct scarcely ensures that legislative independence that is the root of the Speech or Debate Clause. Even if the statute and this indictment were deemed limited to payments clearly destined for, or actually put to, personal use in exchange for a promise to perform a legislative act, the Speech or Debate Clause would still be offended. The potential for executive harassment is not diminished merely because the conduct made criminal is more clearly defined. A Member of Congress becomes vulnerable to abuse each time he makes a promise to a constituent on
|
Justice White
| 1,972 | 6 |
second_dissenting
|
United States v. Brewster
|
https://www.courtlistener.com/opinion/108607/united-states-v-brewster/
|
each time he makes a promise to a constituent on a matter over which he has some degree of legislative power, and the possibility of harassment can inhibit his exercise of power as well as his relations with constituents. In addition, such a prosecution presents the difficulty of defining when money obtained by a legislator is destined for or has been put to personal use. For the legislator who uses both personal funds and campaign contributions to maintain himself in office, the choice of which to draw upon may have more to do with bookkeeping than bribery; yet any interchange of funds would certainly render his conduct suspect. Even those Members of Congress who keep separate accounts for campaign contributions but retain unrestricted drawing rights would remain open to a charge that the money was in fact for personal use. In both cases, the possibility of a bribery prosecution presents the problem of determining exactly those purposes for which campaign contributions can legitimately be used. The difficulty of drawing workable lines enhances the prospects for executive control and correspondingly diminishes congressional freedom of action. The majority does not deny the potential for executive control that inheres in sanctioning this prosecution. Instead, it purports to define the problem away by asserting *560 that the Speech or Debate Clause reaches only prosecutions for legislative conduct and that a promise to vote for a bill, as distinguished from the vote itself, does not amount to a legislative act. The implication is that a prosecution based upon a corrupt promise no more offends the Speech or Debate Clause than the prosecution of a Congressman for assault, robbery, or murder. The power to prosecute may threaten legislative independence but the Constitution does not for that reason forbid it. I find this unpersuasive. The fact that the Executive may prosecute Members of Congress for ordinary criminal conduct, which surely he can despite the potential for influencing legislative conduct, cannot itself demonstrate that prosecutions for corrupt promises to perform legislative acts would be equally constitutional. The argument proves too much, for it would as surely authorize prosecutions for the legislative act itself. Moreover, there is a fundamental difference in terms of potential abuse between prosecutions for ordinary crime and those based upon a promise to perform a legislative act. Even the most vocal detractor of Congress could not accurately maintain that the Executive would often have credible basis for accusing a member of Congress of murder, theft, rape, or other such crimes. But the prospects for asserting an arguably valid claim are far wider in scope for
|
Justice White
| 1,972 | 6 |
second_dissenting
|
United States v. Brewster
|
https://www.courtlistener.com/opinion/108607/united-states-v-brewster/
|
an arguably valid claim are far wider in scope for an Executive prone to fish in legislative waters and to search for correlations between legislative performance and financial support. The possibilities are indeed endless, as is the potential for abuse. The majority ignores another vital difference between executive authority to prosecute for ordinary crime and the power to challenge undertakings or conspiracies to corrupt the legislative process. In a prosecution for drunken driving or assault, the manner in which a Congressman performed his legislative tasks is quite irrelevant *561 to either prosecution or defense. In the trial of a Congressman for making a corrupt promise to vote, on the other hand, proof that his vote was in fact contrary to the terms of the alleged bargain will make a strong defense. See United -177. A Congressman who knows he is under investigation for a corrupt undertaking will be well advised to conduct his affairs in a manner wholly at odds with the theory of the charge which may be lodged against him. As a practical matter, to prosecute a Congressman for agreeing to accept money in exchange for a promise to perform a legislative act inherently implicates legislative conduct. And to divine a distinction between promise and performance is wholly at odds with protecting that legislative independence that is the heart of the Speech or Debate Clause. Congress itself clearly did not make the distinction that the majority finds dispositive. The statute before us is a comprehensive effort to sanitize the legislative environment. It expressly permits prosecutions of members of Congress for voting or promising to vote in exchange for money. The statute does not concern itself with murder or other undertakings unrelated to the legislative process. Congress no doubt believed it consistent with the Speech or Debate Clause to authorize executive prosecutions for corrupt voting. Equally obvious is the fact that Congress drew no distinction in legislative terms between prosecutions based upon voting and those based upon motivations underlying legislative conduct. The arguments that the majority now embraces were the very contentions that the Government made in United In rejecting those arguments on the facts of that case, where legislative conduct as well as a prior conspiracy formed a major part of the Government's proof, the Court referred with *562 approval to Ex parte Wason, L. R. 4 Q. B. 573 (1869), in which the question was whether members of the House of Lords could be prosecuted for a conspiracy to prevent presentation of a petition on the floor of Lords. sets out the reaction of the English court:
|
Justice White
| 1,972 | 6 |
second_dissenting
|
United States v. Brewster
|
https://www.courtlistener.com/opinion/108607/united-states-v-brewster/
|
of Lords. sets out the reaction of the English court: "The court denied the motion, stating that statements made in the House `could not be made the foundation of civil or criminal proceedings And a conspiracy to make such statements would not make the person guilty of it amenable to the criminal law.' (Cockburn, C. J.) Mr. Justice Lush added, `I am clearly of opinion that we ought not to allow it to be doubted for a moment that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House.'" The Wason court clearly refused to distinguish between promise and performance; the legislative privilege applied to both. Mr. Justice Harlan, writing for the Court in took no issue with this position. Indeed, he indicated that the Speech or Debate Clause barred any prosecution under a general statute where there is drawn in question "the legislative acts of the member of Congress or his motives for performing them." I find it difficult to believe that under the statute there involved the Court would have permitted a prosecution based upon a promise to perform a legislative act. Because it gives a begrudging interpretation to the clause, the majority finds it can avoid dealing with the position upon which the Government placed principal reliance in its brief in this Court. put aside the question whether an otherwise impermissible prosecution *563 conducted pursuant to a statute such as we now have before usa statute specifically including congressional conduct and purporting to be an exercise of congressional power to discipline its Memberswould be consistent with the Speech or Debate Clause. As must be apparent from what so far has been said, I am convinced that such a statute contravenes the letter and purpose of the Clause. True, Congress itself has defined the crime and specifically delegated to the Executive the discretion to prosecute and to the courts the power to try. Nonetheless, I fail to understand how a majority of Congress can bind an objecting Congressman to a course so clearly at odds with the constitutional command that legislative conduct shall be subject to question in no place other than the Senate or the House of Representatives. The Speech or Debate Clause is an allocation of power. It authorizes Congress to call offending members to account in their appropriate Houses. A statute that represents an abdication of that power is in my view impermissible. I return to the beginning. The Speech or Debate Clause does not immunize corrupt
|
Justice Ginsburg
| 2,017 | 5 |
majority
|
Nelson v. Colorado
|
https://www.courtlistener.com/opinion/4384109/nelson-v-colorado/
|
When a criminal conviction is invalidated by a review- ing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction? Our answer is yes. Absent conviction of a crime, one is presumed innocent. Under the Colorado law before us in these cases, however, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her inno- cence by clear and convincing evidence. This scheme, we hold, offends the Fourteenth Amendment’s guarantee of due process. I A Two cases are before us for review. Petitioner Shannon Nelson, in 2006, was convicted by a Colorado jury of five counts—two felonies and three misdemeanors—arising from the alleged sexual and physical abuse of her four children. ; App. 25–26. 2 NELSON v. COLORADO Opinion of the Court The trial court imposed a prison sentence of 20 years to life and ordered Nelson to pay court costs, fees, and resti- tution totaling $8, 362 P.3d, at On appeal, Nelson’s conviction was reversed for trial error. On retrial, a new jury acquitted Nelson of all charges. Petitioner Louis Alonzo Madden, in 2005, was convicted by a Colorado jury of attempting to patronize a prostituted child and attempted third-degree sexual assault by force. See The trial court im- posed an indeterminate prison sentence and ordered Madden to pay costs, fees, and restitution totaling $4,413.00. The Colorado Supreme Court reversed one of Madden’s convictions on direct review, and a post- conviction court vacated the other. The State elected not to appeal or retry the case. Between Nelson’s conviction and acquittal, the Colorado Department of Corrections withheld $702.10 from her inmate account, $287.50 of which went to costs and fees1 and $414.60 to restitu See 362 P.3d, at and n. 1. Following Madden’s conviction, Madden paid Colo- rado $1,977.75, $1,220 of which went to costs and fees2 and $757.75 to restitu See 364 P.3d, at The sole legal basis for these assessments was the fact of Nelson’s and Madden’s convictions.3 Absent those convictions, —————— 1 Of the $287.50 for costs and fees, $125 went to the victim compensa- tion fund and $162.50 to the victims and witnesses assistance and law enforcement fund (VAST fund). See n. 1 2 Of the $1,220 for costs and fees, $125 went to the victim compensa- tion fund and $1,095 to the VAST fund ($1,000 of which was for the special advocate surcharge). See App. 79; 3 See –4.1–9(1)(a) (2005) (levying victim- compensation-fund fees for “each criminal action
|
Justice Ginsburg
| 2,017 | 5 |
majority
|
Nelson v. Colorado
|
https://www.courtlistener.com/opinion/4384109/nelson-v-colorado/
|
–4.1–9(1)(a) (2005) (levying victim- compensation-fund fees for “each criminal action resulting in a convic- tion or in a deferred judgment and sentence”); (2005) (same, for VAST fund fees); (same, for special advocate surcharge); (2005) (with one exception, Cite as: 581 U. S. (2017) 3 Opinion of the Court Colorado would have no legal right to exact and retain petitioners’ funds. Their convictions invalidated, both petitioners moved for return of the amounts Colorado had taken from them. In Nelson’s case, the trial court denied the motion outright. 362 P.3d, at In Madden’s case, the postconviction court allowed the refund of costs and fees, but not restitu- 364 P.3d, at –868. The same Colorado Court of Appeals panel heard both cases and concluded that Nelson and Madden were enti- tled to seek refunds of all they had paid, including amounts allocated to restitu See ; People v. Madden, WL 1760, *1 Costs, fees, and restitu- tion, the court held, must be “tied to a valid conviction,” –628, absent which a court must “retur[n] the defendant to the status quo ante,” WL 1760, at *2. The Colorado Supreme Court reversed in both cases. A court must have statutory authority to issue a refund, that court ; Colo- rado’s Compensation for Certain Exonerated Persons statute (Exoneration Act or Act), –65– 101, 13–65–102, 13–65–103 (2016), passed in “pro- vides the proper procedure for seeking a refund,” the court 1077. As no other statute ad- dresses refunds, the court concluded that the Exoneration Act is the “exclusive process for exonerated defendants —————— “[e]very order of conviction shall include consideration of restitu- tion”). See (“[T]he State pays the cost of crimi- nal cases when a defendant is acquitted.” (citing – 18–101(1) )). Under Colorado law, a restitution order tied to a criminal conviction is rendered as a separate civil judgment. See 1.3–603(4)(a) (2005). If the conviction is reversed, any restitution order dependent on that conviction is simultaneously vacated. See 4 NELSON v. COLORADO Opinion of the Court seeking a refund of costs, fees, and restitu” at 1078.4 Because neither Nelson nor Madden had filed a claim under the Act, the court further determined, their trial courts lacked authority to order a refund. at 1075, 1078; 364 P.3d, at5 There was no due process problem, the court continued, because the Act “provides sufficient process for defendants to seek refunds of costs, fees, and restitution that they paid in connection with their convic” Justice Hood dissented in both cases. Because neither petitioner has been validly convicted, he each must be presumed innocent. ; 364 P.3d, at 870 (adopting his
|
Justice Ginsburg
| 2,017 | 5 |
majority
|
Nelson v. Colorado
|
https://www.courtlistener.com/opinion/4384109/nelson-v-colorado/
|
be presumed innocent. ; 364 P.3d, at 870 (adopting his reasoning from Nelson in Mad- den). Due process therefore requires some mechanism “for the return of a defendant’s money,” Justice Hood main- ; as the Exoneration Act required petitioners to prove their innocence, the Act, he concluded, did not supply the remedy due process demands, at 1081. We granted certiorari. 579 U. S. (2016). B The Exoneration Act provides a civil claim for relief “to compensate an innocent person who was wrongly con- victed.” Recovery under the Act is avail- able only to a defendant who has served all or part of a term of incarceration pursuant to a felony conviction, and whose conviction has been overturned for reasons other —————— 4 While these cases were pending in this Court, Colorado passed new legislation to provide “[r]eimbursement of amounts paid following a vacated convic” See Colo. House Bill 17– (quoting language for Colo. Rev. Stat. 1.3–703, the new provision). That legislation takes effect September 1, 2017, and has no effect on the cases before us. 5 Prior to the Exoneration Act, the Colorado Supreme Court recog- nized the competence of courts, upon reversal of a conviction, to order the refund of monetary exactions imposed on a defendant solely by reason of the convic 364 P.2d 588, 593 (1961). Cite as: 581 U. S. (2017) 5 Opinion of the Court than insufficiency of evidence or legal error unrelated to actual innocence. See To succeed on an Exoneration Act claim, a petitioner must show, by clear and convincing evidence, her actual innocence of the of- fense of convic 13–65–102(1). A successful petitioner may recoup, in addition to compensa- tion for time served,6 “any fine, penalty, court costs, or restitution paid as a result of his or her wrongful convic” governs these cases. Colorado argues that we should instead apply the standard from 445 (1992), and inquire whether Nelson and Madden were exposed to a procedure offensive to a fundamental princi- ple of justice. Medina “provide[s] the appropriate frame- work for assessing the validity of state procedural rules” that “are part of the criminal process.” Such rules concern, for example, the allocation of burdens of —————— 6 Compensation under the Exoneration Act includes $70,000 per year of incarceration for the wrongful conviction; additional sums per year served while the defendant is under a sentence of death, or placed on parole or probation or on a sex offender registry; compensation for child support payments due during incarceration; tuition waivers at state institutions of higher education for the exonerated person and for any children conceived
|
Justice Ginsburg
| 2,017 | 5 |
majority
|
Nelson v. Colorado
|
https://www.courtlistener.com/opinion/4384109/nelson-v-colorado/
|
education for the exonerated person and for any children conceived or legally adopted before the incarceration; and reasonable attorney’s fees for bringing an Exoneration Act claim. 65–103(2), (3) (2016). 6 NELSON v. COLORADO Opinion of the Court proof and the type of evidence qualifying as admissible.7 These cases, in contrast, concern the continuing depriva- tion of property after a conviction has been reversed or vacated, with no prospect of reprosecu See Kaley v. United States, 571 U. S. n. 4 (2014) (ROBERTS, C. J., dissenting) (slip op., at 10–, n. 4) (explaining the different offices of Mathews and Medina). Because no further criminal process is implicated, Mathews “provides the relevant inquiry.” 571 U. S., at (slip op., at n. 4). III Under the Mathews balancing test, a court evaluates (A) the private interest affected; (B) the risk of erroneous deprivation of that interest through the procedures used; and (C) the governmental interest at stake. 424 U.S., at 335. All three considerations weigh decisively against Colorado’s scheme. A Nelson and Madden have an obvious interest in regain- ing the money they paid to Colorado. Colorado urges, however, that the funds belong to the State because Nel- son’s and Madden’s convictions were in place when the funds were taken. Tr. of Oral Arg. 29–31. But once those convictions were erased, the presumption of their inno- cence was restored. See, e.g., Johnson v. Mississippi, 486 U.S. 578, 585 (8) (standard of proof to establish incompetence to stand trial); (admissibility of testimony about a prior crime of which the defendant was acquitted); v. New York, (burden of proving affirmative defense); 443–446, 457 (1992) (burden of proving incompetence to stand trial). Cite as: 581 U. S. (2017) 7 Opinion of the Court he must be presumed innocent of that charge.”).8 “[A]xiomatic and elementary,” the presumption of inno- cence “lies at the foundation of our criminal law.” Coffin v. United States,9 Colorado may not retain funds taken from Nelson and Madden solely because of their now-invalidated convictions, see at 2–3, and n. 3, for Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.10 That petitioners prevailed on subsequent review rather than in the first instance, moreover, should be inconse- quential. Suppose a trial judge grants a motion to set aside a guilty verdict for want of sufficient evidence. In that event, the defendant pays no costs, fees, or restitu- Now suppose the trial court enters judgment on a guilty verdict, ordering cost, fee, and restitution payments —————— 8 Citing Colorado asserts that “[t]he presumption of innocence applies only
|
Justice Ginsburg
| 2,017 | 5 |
majority
|
Nelson v. Colorado
|
https://www.courtlistener.com/opinion/4384109/nelson-v-colorado/
|
Citing Colorado asserts that “[t]he presumption of innocence applies only at criminal trials” and thus has no application here. Brief for Respondent 40, n. 19. Colorado misapprehends Wolfish. Our opinion in that case recognized that “under the Due Process Clause,” a detainee who “has not been adjudged guilty of any crime” may not be –536; see at 535–540. Wolfish held only that the presumption does not prevent the government from “detain[ing a defendant] to ensure his presence at trial so long as [the] conditions and restrictions [of his detention] do not amount to punishment, or otherwise violate the Constitu” at 536–537. 9 Were Medina applicable, Colorado’s Exoneration Act scheme would similarly fail due process measurement. Under Medina, a criminal procedure violates due process if “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (quoting ). The presumption of innocence unquestionably fits that bill. 10 Colorado invites a distinction between convictions merely “void- able,” rather than “void,” and urges that the invalidated convictions here fall in the voidable category. See Brief for Respondent 32–33, and n. As Justice Hood noted in dissent, however, “reversal is reversal,” regardless of the reason, “[a]nd an invalid conviction is no conviction at all.” 8 NELSON v. COLORADO Opinion of the Court by reason of the conviction, but the appeals court upsets the conviction for evidentiary insufficiency. By what right does the State retain the amount paid out by the defend- ant? “[I]t should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.” (1978). The vulnerability of the State’s argument that it can keep the amounts exacted so long as it prevailed in the court of first instance is more apparent still if we assume a case in which the sole penalty is a fine. On Colorado’s reasoning, an appeal would leave the defendant emptyhanded; regardless of the outcome of an appeal, the State would have no refund obliga See Tr. of Oral Arg. 41, 44. B Is there a risk of erroneous deprivation of defendants’ interest in return of their funds if, as Colorado urges, the Exoneration Act is the exclusive remedy? Indeed yes, for the Act conditions refund on defendants’ proof of innocence by clear and convincing evidence. 65–101(1)(a). But to get their money back, defendants should not be saddled with any proof burden. Instead, as at 6– 7, they are entitled to be presumed innocent. Furthermore, as Justice Hood noted in dissent, the Act —————— The dissent echoes Colorado’s argument. If
|
Justice Ginsburg
| 2,017 | 5 |
majority
|
Nelson v. Colorado
|
https://www.courtlistener.com/opinion/4384109/nelson-v-colorado/
|
dissent, the Act —————— The dissent echoes Colorado’s argument. If Nelson and Madden prevailed at trial, the dissent agrees, no costs, fees, or restitution could be exacted. See post, at 6. But if they prevailed on appellate inspec- tion, the State gets to keep their money. See Under Colorado law, as the dissent reads the Colorado Supreme Court’s opinion, “moneys lawfully exacted pursuant to a valid conviction become public funds (or[, in the case of restitution,] the victims’ money).” Post, at 3–4. Shut from the dissent’s sights, however, the convictions pursuant to which the State took petitioners’ money were invalid, hence the State had no legal right to retain their money. Given the invalidity of the convic- tions, does the Exoneration Act afford sufficient process to enable the State to retain the money? Surely, it does not. Cite as: 581 U. S. (2017) 9 Opinion of the Court provides no remedy at all for any assessments tied to invalid misdemeanor convictions (Nelson had three). 362 P.3d, at 1081, n. 1; see 65–102(1)(a). And when amounts a defendant seeks to recoup are not large, as is true in Nelson’s and Madden’s cases, see the cost of mounting a claim under the Exoneration Act and retaining a lawyer to pursue it would be prohibitive.12 Colorado argued on brief that if the Exoneration Act provides sufficient process to compensate a defendant for the loss of her liberty, the Act should suffice “when a defendant seeks compensation for the less significant deprivation of monetary assessments paid pursuant to a conviction that is later overturned.” Brief for Respondent 40. The comparison is inapt. Nelson and Madden seek restoration of funds they paid to the State, not compensa- tion for temporary deprivation of those funds. Petitioners seek only their money back, not interest on those funds for the period the funds were in the State’s custody. Just as the restoration of liberty on reversal of a conviction is not compensation, neither is the return of money taken by the State on account of the convic Colorado suggests that “numerous pre- and post- deprivation procedures”—including the need for probable cause to support criminal charges, the jury-trial right, and the State’s burden to prove guilt beyond a reasonable doubt—adequately minimize the risk of erroneous depri- vation of property. ; see –35. But Colo- rado misperceives the risk at issue. The risk here involved is not the risk of wrongful or invalid conviction any crimi- nal defendant may face. It is, instead, the risk faced by a defendant whose conviction has already been overturned —————— 12 Asuccessful petitioner under
|
Justice Ginsburg
| 2,017 | 5 |
majority
|
Nelson v. Colorado
|
https://www.courtlistener.com/opinion/4384109/nelson-v-colorado/
|
conviction has already been overturned —————— 12 Asuccessful petitioner under the Exoneration Act can recover rea- sonable attorney’s fees, 65–103(2)(e)(IV), but neither a defendant nor counsel is likely to assume the risk of loss when amounts to be gained are not worth the candle. 10 NELSON v. COLORADO Opinion of the Court that she will not recover funds taken from her solely on the basis of a conviction no longer valid. None of the above-stated procedures addresses that risk, and, as just the Exoneration Act is not an adequate rem- edy for the property deprivation Nelson and Madden experienced.13 C Colorado has no interest in withholding from Nelson and Madden money to which the State currently has zero claim of right. “Equitable [c]onsiderations,” Colorado suggests, may bear on whether a State may withhold funds from criminal defendants after their convictions are overturned. Brief for Respondent 20–22. Colorado, however, has identified no such consideration relevant to petitioners’ cases, nor has the State indicated any way in which the Exoneration Act embodies “equitable considerations.” IV Colorado’s scheme fails due process measurement be- cause defendants’ interest in regaining their funds is high, the risk of erroneous deprivation of those funds under the Exoneration Act is unacceptable, and the State has shown no countervailing interests in retaining the amounts in ques To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subse- quently invalidated. —————— 13 Colorado additionally argues that defendants can request a stay of sentence pending appeal, thereby reducing the risk of erroneous depri- va See Brief for Respondent 32; 18–1.3–702(1)(a) (2016). But the State acknowledged at oral argument that few defend- ants can meet the requirements a stay pending appeal entails. Tr. of Oral Arg. 33–34. And even when a stay is available, a trial court “may require the defendant to deposit the whole or any part of the costs.” Colo. App. Rule 8.1(a)(3) (2016). Cite as: 581 U. S. (2017) Opinion of the Court * * * The judgments of the Colorado Supreme Court are reversed, and the cases are remanded for further proceed- ings not inconsistent with this opinion. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of these cases. Cite as: 581 U. S. (2017) 1 ALITO, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 15–1256 SHANNON NELSON, PETITIONER v. COLORADO LOUIS A. MADDEN, PETITIONER v. COLORADO ON WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO [April 19, 2017] JUSTICE ALITO, concurring in the
|
Justice O'Connor
| 1,992 | 14 |
concurring
|
Farrar v. Hobby
|
https://www.courtlistener.com/opinion/112798/farrar-v-hobby/
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If ever there was a plaintiff who deserved no attorney's fees at all, that plaintiff is Joseph Farrar. He filed a lawsuit demanding 17 million dollars from six defendants. After 10 years of litigation and two trips to the Court of Appeals, he got one dollar from one defendant. As the Court holds today, that is simply not the type of victory that merits an award of attorney's Accordingly, I join the Court's opinion and concur in its judgment. I write separately only to explain more fully why, in my view, it is appropriate to deny fees in this case. I Congress has authorized the federal courts to award "a reasonable attorney's fee" in certain civil rights cases, but only to "the prevailing party." 42 U.S. C. 1988; Texas State Teachers To become a prevailing party, a plaintiff must obtain, at an absolute minimum, "actual relief on the merits of [the] claim," ante, at 111, which "affects the behavior of the defendant towards the plaintiff," ; accord, ante, at 111-112 (relief obtained must "alte[r] the legal relationship between the parties" and "modif[y] the defendant's behavior in a way that directly benefits the plaintiff"). Joseph Farrar met that minimum condition for prevailing party status. Through this lawsuit, he obtained an enforceable judgment for one dollar in nominal damages. One dollar is not exactly a bonanza, but it constitutes relief on the merits. *117 And it affects the defendant's behavior toward the plaintiff, if only by forcing him to pay one dollarsomething he would not otherwise have done. Ante, at 113. Nonetheless, explicitly states that an enforceable judgment alone is not always enough: "Beyond th[e] absolute limitation [of some relief on the merits], a technical victory may be so insignificant as to be insufficient" to support an award of attorney's While may be read as indicating that this de minimis or technical victory exclusion is a second barrier to prevailing party status, the Court makes clear today that, in fact, it is part of the determination of what constitutes a reasonable fee. Compare with ante, at 114 (the "`technical' " nature of the victory "does not affect the prevailing party inquiry" but instead "bear[s] on the propriety of fees awarded under 1988"). And even if the exclusion's location is debatable, its effect is not: When the plaintiff's success is purely technical or de minimis, no fees can be awarded. Such a plaintiff either has failed to achieve victory at all, or has obtained only a Pyrrhic victory for which the reasonable fee is zero. The Court's opinion today and its unanimous opinion
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Justice O'Connor
| 1,992 | 14 |
concurring
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Farrar v. Hobby
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https://www.courtlistener.com/opinion/112798/farrar-v-hobby/
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is zero. The Court's opinion today and its unanimous opinion in are thus in accord. See ante, at 115 (merely "forma[l]" victory can yield "no attorney's fees at all"); Consequently, the Court properly holds that, when a plaintiff's victory is purely technical or de minimis, a district court need not go through the usual complexities involved in calculating attorney's Ante, at 114-115 (court need not calculate presumptive fee by determining the number of hours reasonably expended and multiplying it by the reasonable hourly rate; nor must it apply the 12 factors bearing on reasonableness). As a matter of common sense and sound *118 judicial administration, it would be wasteful indeed to require that courts laboriously and mechanically go through those steps when the de minimis nature of the victory makes the proper fee immediately obvious. Instead, it is enough for a court to explain why the victory is de minimis and announce a sensible decision to "award low fees or no fees" at all. Ante, at 115. Precedent confirms what common sense suggests. It goes without saying that, if the de minimis exclusion were to prevent the plaintiff from obtaining prevailing party status, fees would have to be denied. And if the de minimis victory exclusion is in fact part of the reasonableness inquiry, see ante, at 114, summary denial of fees is still appropriate. We have explained that even the prevailing plaintiff may be denied fees if "`special circumstances would render [the] award unjust.' " While that exception to fee awards has often been articulated separately from the reasonableness inquiry, sometimes it is bound up with reasonableness: It serves as a short-hand way of saying that, even before calculating a lodestar or wading through all the reasonableness factors, it is clear that the reasonable fee is no fee at all. After all, where the only reasonable fee is no fee, an award of fees would be unjust; conversely, where a fee award would be unjust, the reasonable fee is no fee at all. Of course, no matter how much sense this approach makes, it would be wholly inappropriate to adopt it if Congress had declared a contrary intent. When construing a statute, this Court is bound by the choices Congress has made, not the choices we might wish it had made. Felicitously, here they are one and the same. Section 1988 was enacted for a specific purpose: to restore the former equitable practice of awarding attorney's fees to the prevailing party in certain civil rights cases, a practice this Court had disapproved in Alyeska Pipeline Service at ; see
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Justice O'Connor
| 1,992 | 14 |
concurring
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Farrar v. Hobby
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https://www.courtlistener.com/opinion/112798/farrar-v-hobby/
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Court had disapproved in Alyeska Pipeline Service at ; see S. Rep. No. 94-1011, *119 p. 6 ("This bill creates no startling new remedyit only meets the technical requirements that the Supreme Court has laid down if the Federal courts are to continue the practice of awarding attorneys' fees which had been going on for years prior to the Court's [Alyeska] decision"). That practice included the denial of fees to plaintiffs who, although technically prevailing parties, had achieved only de minimis success. See, e. g., ; see also )); cf. And although Congress did not intend to restore every detail of pre-Alyeska practice, see West Virginia Univ. Hospitals, the practice of denying fees to Pyrrhic victors is one it clearly intended to preserve. Section 1988 expressly grants district courts discretion to withhold attorney's fees from prevailing parties in appropriate circumstances: It states that a court "may" award fees "in its discretion." 42 U.S. C. 1988. As under pre-Alyeska practice, the occurrence of a purely technical or de minimis victory is such a circumstance. Chimerical accomplishments are simply not the kind of legal change that Congress sought to promote in the fee statute. Indeed, 1988 contemplates the denial of fees to de minimis victors through yet another mechanism. The statute only authorizes courts to award fees "as part of the costs." 42 U.S. C. 1988. As a result, when a court denies costs, it *120 must deny fees as well; if there are no costs, there is nothing for the fees to be awarded "as part of." And when Congress enacted 1988, the courts would deny even a prevailing party costs under Federal Rule of Civil Procedure 54(d) where the victory was purely technical. (CA6) )), cert. denied, ; Esso Standard (Libya), Inc. v. SS Wisconsin, 54 F. R. D. 26, 27 (SD Tex. 1971) ("Circumstances justifying denial of costs to the prevailing party [exist] where the judgment recovered was insignificant in comparison to the amount actually sought"); see also Just as a Pyrrhic victor would be denied costs under Rule 54(d), so too should it be denied fees under 1988. II In the context of this litigation, the technical or de minimis nature of Joseph Farrar's victory is readily apparent: He asked for a bundle and got a pittance. While we hold today that this pittance is enough to render him a prevailing party, ante, at 113-114, it does not by itself prevent his victory from being purely technical. It is true that Joseph Farrar recovered something. But holding that any award of nominal damages renders the victory material would
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Justice O'Connor
| 1,992 | 14 |
concurring
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Farrar v. Hobby
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https://www.courtlistener.com/opinion/112798/farrar-v-hobby/
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any award of nominal damages renders the victory material would "render the concept of de minimis relief meaningless. Every nominal damage award has as its basis a finding of liability, but obviously many such victories are Pyrrhic ones." Lawrence v. Hinton, 20 Fed. Rules Serv. 3d 934, 937 ; accord, Commissioners Court of Medina County, That is not to say that all nominal damages awards are de minimis. Nominal relief does not necessarily a nominal victory make. See ante, at 115. But, as in pre-Alyeska and Rule 54(d) practice, see a substantial difference between the judgment recovered and the recovery sought suggests that the victory is in fact purely technical. See ante, at 115 ("A plaintiff who seeks compensatory damages but receives no more than nominal damages" may "formally `prevai[l]' under 1988" but will "often" receive no fees at all). Here that suggestion is quite strong. Joseph Farrar asked for 17 million dollars; he got one. It is hard to envision a more dramatic difference. The difference between the amount recovered and the damages sought is not the only consideration, however. makes clear that an award of nominal damages can represent a victory in the sense of vindicating rights even though no actual damages are proved. Ante, at 112. Accordingly, the courts also must look to other factors. One is the significance of the legal issue on which the plaintiff claims to have prevailed. 489 U. S., Petitioners correctly point out that Joseph Farrar in a sense succeeded on a significant issueliability. But even on that issue he cannot be said to have achieved a true victory. Respondent was just one of six defendants and the only one not found to have engaged in a conspiracy. If recovering one dollar from the least culpable defendant and nothing from the rest legitimately can be labeled a victoryand I doubt that it cansurely it is a hollow one. Joseph Farrar may have won a point, but the game, set, and match all went to the defendants. Given that Joseph Farrar got some of what he wanted one seventeen millionth, to be precisehis success might be considered material if it also accomplished some public goal *122 other than occupying the time and energy of counsel, court, and client. Section 1988 is not "a relief Act for lawyers." Instead, it is a tool that ensures the vindication of important rights, even when large sums of money are not at stake, by making attorney's fees available under a private attorney general theory. Yet one searches these facts in vain for the public purpose this litigation
|
Justice O'Connor
| 1,992 | 14 |
concurring
|
Farrar v. Hobby
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https://www.courtlistener.com/opinion/112798/farrar-v-hobby/
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these facts in vain for the public purpose this litigation might have served. The District Court speculated that the judgment, if accompanied by a large fee award, might deter future lawless conduct, see App. to Pet. for Cert. A23A24, but did not identify the kind of lawless conduct that might be prevented. Nor is the conduct to be deterred apparent from the verdict, which even petitioners acknowledge is "regrettably obtuse." Tr. of Oral Arg. 16. Such a judgment cannot deter misconduct any more than a bolt of lightning can; its results might be devastating, but it teaches no valuable lesson because it carries no discernable meaning. Cf. Chicano Police Officer's cited and quoted in III In this case, the relevant indicia of successthe extent of relief, the significance of the legal issue on which the plaintiff prevailed, and the public purpose servedall point to a single conclusion: Joseph Farrar achieved only a de minimis victory. As the Court correctly holds today, the appropriate fee in such a case is no fee at all. Because the Court of Appeals gave Joseph Farrar everything he deservednothingI join the Court's opinion affirming the judgment below. Justice White, with whom Justice Blackmun, Justice Stevens, and Justice Souter join, concurring in part and dissenting in part. We granted certiorari in this case to decide whether 42 U.S. C. 1988 entitles a civil rights plaintiff who recovers *123 nominal damages to reasonable attorney's Following our decisions in Texas State Teachers and the Court holds that it does. With that aspect of today's decision, I agree. Because Farrar won an enforceable judgment against respondent, he has achieved a "material alteration" of their legal relationship, -793, and thus he is a "prevailing party" under the statute. However, I see no reason for the Court to reach out and decide what amount of attorney's fees constitutes a reasonable amount in this instance. That issue was neither presented in the petition for certiorari nor briefed by petitioners. The opinion of the Court of Appeals was grounded exclusively in its determination that Farrar had not met the threshold requirement under 1988. At no point did it purport to decide what a reasonable award should be if Farrar was a prevailing party. It may be that the District Court abused its discretion and misapplied our precedents by belittling the significance of the amount of damages awarded in ascertaining petitioners' Cf. But it is one thing to say that the court erred as a matter of law in awarding $280,000; quite another to decree, especially without the benefit of petitioners' views or consideration
|
Justice O'Connor
| 1,992 | 14 |
concurring
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Farrar v. Hobby
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https://www.courtlistener.com/opinion/112798/farrar-v-hobby/
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decree, especially without the benefit of petitioners' views or consideration by the Court of Appeals, that the only fair fee was no fee whatsoever.[*] Litigation in this case lasted for more than a decade, has entailed a 6-week trial and given rise to two appeals. Civil rights cases often are complex, and we therefore have committed the task of calculating attorney's fees to the trial court's discretion for good reason. See, e. g., *124 -437; at -790; Estimating what specific amount would be reasonable in this particular situation is not a matter of general importance on which our guidance is needed. Short of holding that recovery of nominal damages never can support the award of attorney's feeswhich, clearly, the majority does not, see ante, at 115the Court should follow its sensible practice and remand the case for reconsideration of the fee amount. Cf. Indeed, respondent's counsel all but conceded at oral argument that, assuming the Court found Farrar to be a prevailing party, the question of reasonableness should be addressed on remand. See Tr. of Oral Arg. 31-32. I would vacate the judgment of the Court of Appeals and remand the case for further proceedings. Accordingly, I dissent.
|
Justice Stevens
| 1,996 | 16 |
dissenting
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Peacock v. Thomas
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https://www.courtlistener.com/opinion/117998/peacock-v-thomas/
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The conflict between the views of the judges on the Court of Appeals and the District Court, on the one hand, and those of my eight colleagues, on the other, demonstrates that this is not an easy case. I believe its outcome should be determined by a proper application of the principle, first announced by Chief Justice Marshall, that a federal court's jurisdiction "is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied." In my opinion that jurisdiction encompasses a claim by a judgment creditor that a party in control of the judgment debtor has fraudulently exercised that control to defeat satisfaction of the judgment. In substance the Court so held in and in Labette County In each of those cases a judgment against the county was unsatisfied because the county commissioners refused to levy a tax to raise the funds needed to pay the judgment, and in each this Court held that the federal court had jurisdiction to compel the commissioners to take the action necessary to enable the county to satisfy the judgment. It is true, as the Court notes today, that the "order in each case merely required compliance with the existing judgment by the persons with authority to comply." Ante, at 358. But the Court fails to explain why the District Court would not have had jurisdiction to enter a comparable order in this caseone that would have directed petitioner to restore to the judgment *361 debtor the assets that he allegedly transferred to himself to prevent satisfaction of the judgment.[*] It is true that the order that was actually entered against petitioner did more than thatit ordered him to satisfy the original judgment in full, rather than merely to restore the fraudulent transfers. For that reason, I agree that the relief was excessive and should be modified. Nevertheless, the Court's central holding that the District Court had no power to grant any relief against petitioner is inconsistent with Riggs and Labette. I am also persuaded that the Court's reliance on H. C. Cook is misplaced. The theory of the complaint against the directors of the judgment debtor in that case was that they were "joint trespassers," equally liable for the patent infringement. That theory was comparable to the claim against this petitioner that was asserted and rejected in the original ERISA action. It depended on proof that the directors' prejudgment conduct should subject them to the same liability as the judgment debtor. See *362 at 498. What is at issue now, however, is whether petitioner's postjudgment conduct which
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Justice Rehnquist
| 1,980 | 19 |
majority
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Forsham v. Harris
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https://www.courtlistener.com/opinion/110218/forsham-v-harris/
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The Freedom of Information Act, 5 U.S. C. 552, empowers federal courts to order an "agency" to produce "agency records improperly withheld" from an individual requesting access. 552 (4) (B). We hold here that written data generated, owned, and possessed by a privately controlled organization receiving federal study grants are not "agency records" within the meaning of the Act when copies of those data have not been obtained by a federal agency subject to the FOIA. Federal participation in the generation of the data by means of a grant from the Department of Health, Education, and Welfare (HEW) does not make the private organization a federal "agency" within the terms of the Act. Nor does this federal funding in combination with a federal right of access render the data "agency records" of HEW, which is a federal "agency" under the terms of the Act. I In 1959, a group of private physicians and scientists specializing in the treatment of diabetes formed the University Group Diabetes Program (UGDP). The UGDP conducted a long-term study of the effectiveness of five diabetes treatment regimens. Two of these treatment regimens involved diet control in combination with the administration of either tolbutamide, or phenformin hydrochloride, both "oral hypoglycemic" drugs. The UGDP's participating physicians were located at 12 clinics nationwide and the study was coordinated at the Coordinating Center of the University of Maryland. *172 The study generated more than 55 million records documenting the treatment of over 1,000 diabetic patients who were monitored for a 5- to 8-year period. In 1970, the UGDP presented the initial results of its study indicating that the treatment of adult-onset diabetics with tolbutamide increased the risk of death from cardiovascular disease over that present when diabetes was treated by the other methods studied. The UGDP later expanded these findings to report a similarly increased incidence of heart disease when patients were treated with phenformin hydrochloride. These findings have in turn generated substantial professional debate. The Committee on the Care of the Diabetic (CCD), a national association of physicians involved in the treatment of diabetes mellitus patients, have been among those critical of the UGDP study. CCD requested the UGDP to grant it access to the raw data in order to facilitate its review of the UGDP findings, but UGDP has declined to comply with that request. CCD therefore sought to obtain the information under the Freedom of Information Act. The essential facts are not in dispute, and we hereafter set forth those relevant to our decision. The UGDP study has been solely funded by federal grants in the neighborhood
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Justice Rehnquist
| 1,980 | 19 |
majority
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Forsham v. Harris
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https://www.courtlistener.com/opinion/110218/forsham-v-harris/
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has been solely funded by federal grants in the neighborhood of $15 million between 1961 and These grants were awarded UGDP by the National Institute of Arthritis, Metabolism, and Digestive Diseases (NIAMDD), a federal agency,[1] pursuant to the Public Health Service Act, 42 U.S. C. 241 (c). NIAMDD has not only awarded the federal grants to UGDP, but has exercised a certain amount *173 of supervision over the funded activity. Federal regulations governing supervision of grantees allow for the review of periodic reports submitted by the grantee and on-site visits, and require agency approval of major program or budgetary changes. 45 CFR 74.80-74.85 (1979); 42 CFR 52.20 (1979). It is undisputed, however, both that the day-to-day administration of grant-supported activities is in the hands of a grantee, and that NIAMDD's supervision of UGDP conformed to these regulations.[2] The grantee has also retained control of its records: the patient records and raw data generated by UGDP have at all times remained in the possession of that entity, and neither the NIAMDD grants nor related regulations shift ownership of such data to the Federal Government. NIAMDD does, however, have a right of access to the data in order to insure compliance with the grant. 45 CFR 74.24 (1979). And the Government may obtain permanent custody of the documents upon request. 74.21 (c). But NIAMDD has not exercised its right either to review or to obtain permanent custody of the data. Although no employees of the NIAMDD have reviewed the UGDP records, the Institute did contract in 1972 with another private grantee, the Biometric Society, for an assessment of the validity of the UGDP study. The Biometric Society was given direct access to the UGDP raw data by the terms of its contract with NIAMDD. The contract with the Biometric Society, however, did not require the Society to seek access to the UGDP raw data, nor did it require that any data actually reviewed be transmitted to the NIAMDD. While the Society did review some UGDP data, it did not submit any raw data reviewed by it to the NIAMDD. The Society *174 issued a report to the Institute in 1974 concluding that the UGDP results were "mixed" but "moderately strong." An additional connection between the Federal Government and the UGDP study has occurred through the activities of the Food and Drug Administration. After the FDA was apprised of the UGDP results, the agency issued a statement recommending that physicians use tolbutamide in the treatment of diabetes only in limited circumstances. After the UGDP reported finding a similarly higher incidence of cardiovascular disease
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Justice Rehnquist
| 1,980 | 19 |
majority
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Forsham v. Harris
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https://www.courtlistener.com/opinion/110218/forsham-v-harris/
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UGDP reported finding a similarly higher incidence of cardiovascular disease with the administration of phenformin, the FDA proposed changes in the labeling of these oral hypoglycemic drugs to warn patients of cardiovascular hazards. FDA Drug Bulletin (June 23, 1971). The FDA deferred further action on this labeling proposal, however, until the Biometric Society completed its review of the UGDP study.[3] After the Biometric study was issued, FDA renewed its proposal to require a label warning that oral hypoglycemics should be used only in cases of adult-onset, stable diabetes that could not be treated adequately by a combination of diet and insulin. The FDA clearly relied on the UGDP study in renewing this position. 28591 At the time the proposal was published, the FDA invited public comment. In response to criticism of the UGDP study and the Biometric Society's audit, the FDA conducted its own audit of the UGDP study pursuant to a delegation of NIAMDD's authority to audit grantee records. In conducting this audit, the FDA examined and copied a small sample of the UGDP raw data. This audit report has been made available for public inspection. Although this labeling proposal has not yet become final, other FDA regulatory action has been taken. On July 25, *175 1977, the Secretary of HEW suspended the New Drug Application for phenformin, one of the oral hypoglycemic medications studied by the UGDP. The decision was premised in part on the findings of the UGDP study. See Order of the Secretary of Health, Education, and Welfare, July 25, 1977. After the Secretary's temporary order of suspension was issued, proceedings before the FDA continued. The Administrative Law Judge ordered the FDA to produce all UGDP data in its possession. The FDA then produced those portions of the UGDP raw data which the agency had copied, abstracted, or directly transferred to Government premises during its audit. The ALJ found that the HEW suspension order was supported by the evidence. On November 15, the Commissioner of Food and Drugs affirmed the ALJ's finding that phenformin was not shown to be safe and ordered it withdrawn from the market. (1979). This decision was not based substantially on the UGDP study.[4] *176 Petitioners had long since initiated a series of FOIA requests seeking access to the UGDP raw data. On August 7, 1975, HEW denied their request for the UGDP data on the grounds that no branch of HEW had ever reviewed or seen the raw data; that the FDA's proposed relabeling action relied on the UGDP published reports and not on an analysis of the underlying data; that
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Justice Rehnquist
| 1,980 | 19 |
majority
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Forsham v. Harris
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https://www.courtlistener.com/opinion/110218/forsham-v-harris/
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and not on an analysis of the underlying data; that the data were the property of the UGDP, a private group; and that the agencies were not required to acquire and produce those data under the FOIA.[5] The following month petitioners filed this FOIA suit in the United States District Court for the District of Columbia to require HEW to make available all of the raw data compiled by UGDP. The District Court granted summary judgment in favor of respondents, holding that HEW properly denied the request on the ground that the patient data did not constitute "agency records" under the FOIA. The Court of Appeals affirmed on the same rationale. The court found that although NIAMDD is a federal agency, its grantees are not federal agencies. The court rejected the petitioners' argument that the UGDP's records were nevertheless also the federal agency's records. Although HEW has a right of access to the documents, the court reasoned that this right did not render the documents "agency records" since the FOIA only applies to records which have been "created or obtained in the course of doing its work."[6]Id., at The dissenting *177 judge concluded that the UGDP data were "agency records" under the FOIA since the Government had been "significantly involved" in the study through its funding, access to the raw data, and reliance on the study in its regulatory actions. II As we hold in the companion case of Kissinger v. Reporters Committee for Freedom of the Press, ante, p. 136, it must be established that an "agency" has "improperly withheld agency records" for an individual to obtain access to documents through an FOIA action. We hold here that HEW need not produce the requested data because they are not "agency records" within the meaning of the FOIA. In so holding, we reject three separate but related claims of petitioners: (1) the data they seek are "agency records" because they were at least "records" of UGDP, and UGDP in turn received its funds from a federal agency and was subject to some supervision by the agency in its use of those funds; (2) the data they seek are "agency records" because HEW, concededly a federal agency, had sufficient authority under its grant agreement to have obtained the data had it chosen to do so; and (3) the data are "agency records" because they formed the basis for the published reports of UGDP, which in turn were relied upon by the FDA in the actions described above.[7] *178 Congress undoubtedly sought to expand public rights of access to Government information when
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Justice Rehnquist
| 1,980 | 19 |
majority
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Forsham v. Harris
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https://www.courtlistener.com/opinion/110218/forsham-v-harris/
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to expand public rights of access to Government information when it enacted the Freedom of Information Act, but that expansion was a finite one. Congress limited access to "agency records," 5 U.S. C. 552 (4) (B),[8] but did not provide any definition of "agency records" in that Act. The use of the word "agency" as a modifier demonstrates that Congress contemplated some relationship between an "agency" and the "record" requested under the FOIA. With due regard for the policies and language of the FOIA, we conclude that data generated by a privately controlled organization which has received grant funds from an agency (hereafter grantee),[9] but which data has not at any time been obtained by the agency, are not "agency records" accessible under the FOIA. A We first examine petitioners' claim that the data were at least records of UGDP, and that the federal funding and supervision of UGDP alone provides the close connection necessary to render its records "agency records" as that term is used in the Freedom of Information Act. Congress did not define "agency record" under the FOIA, but it did define "agency." The definition of "agency" reveals a great deal about congressional intent as to the availability of records *179 from private grantees under the FOIA, and thus, a great deal about the relevance of federal funding and supervision to the definitional scope of "agency records." Congress excluded private grantees from FOIA disclosure obligations by excluding them from the definition of "agency," an action consistent with its prevalent practice of preserving grantee autonomy. It has, for example, disclaimed any federal property rights in grantee records by virtue of its funding. We cannot agree with petitioners in light of these circumstances that the very federal funding and supervision which Congress found insufficient to make the grantee an agency subject to the FOIA nevertheless makes its records accessible under the same Act. Under 5 U.S. C. 552 (e) an "agency" is defined as "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government. or any independent regulatory agency." The legislative history indicates unequivocally that private organizations receiving federal financial assistance grants are not within the definition of "agency." In their Report, the conferees stated that they did "not intend to include corporations which receive appropriated funds but are neither chartered by the Federal Government nor controlled by it, such as the Corporation for Public Broadcasting." H. Conf. Rep. No. 93-1380, pp. 14-15 (1974), reprinted in Freedom of Information Act and Amendments of 1974 Source Book 231-232 Through operation
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Justice Rehnquist
| 1,980 | 19 |
majority
|
Forsham v. Harris
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https://www.courtlistener.com/opinion/110218/forsham-v-harris/
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Act and Amendments of 1974 Source Book 231-232 Through operation of this exclusion, Congress chose not to confer any direct public rights of access to such federally funded project information.[10] *180 This treatment of federal grantees under the FOIA is consistent with congressional treatment of them in other areas of federal law. Grants of federal funds generally do not create a partnership or joint venture with the recipient, nor do they serve to convert the acts of the recipient from private acts to governmental acts absent extensive, detailed, and virtually day-to-day supervision. United Measured by these standards, the UGDP is not a federal instrumentality or an FOIA agency.[11] Congress could have provided that the records generated by a federally funded grantee were federal property even though the grantee has not been adopted as a federal entity. But Congress has not done so, reflecting the same regard for the autonomy of the grantee's records as for the grantee itself. Congress expressly requires an agency to use "procurement contracts" when the "principal purpose of the instrument is the acquisition of property or services for the direct benefit or use of the Federal Government." Federal Grant and Cooperative Agreement Act of 1977, 4, 41 U.S. C. 503 (1976 ed., Supp. II). In contrast, "grant agreements" must be used when money is given to a recipient "in order to accomplish a public purpose of support or stimulation authorized by Federal statute, rather than acquisition. of property or services." 5, 41 U.S. C. 504 (1976 ed., Supp. II). As in this case, where a grant was used, *181 there is no dispute that the documents created are the property of the recipient, and not the Federal Government. See 45 CFR 74.133 (1979). The HEW regulations do retain a right to acquire the documents. Those regulations, however, clearly demonstrate that unless and until that right is exercised, the records are only the "records of grantees." 45 CFR 74.24 (1979).[12] Therefore, were petitioners to prevail in this action, they would have obtained a right of access to some 55 million documents created, owned, and possessed by a private recipient of federal funds. While this fact itself is not dispositive of the outcome, it is nonetheless an important consideration when viewed in light of these congressional attempts to maintain the autonomy of federal grantees and their records. The fact that Congress has chosen not to make a federal grantee an "agency" or to vest ownership of the records in the Government does not resolve with mathematical precision the question of whether the granting agency's funding and supervisory activities
|
Justice Rehnquist
| 1,980 | 19 |
majority
|
Forsham v. Harris
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https://www.courtlistener.com/opinion/110218/forsham-v-harris/
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question of whether the granting agency's funding and supervisory activities nevertheless make the grantee's records "agency records." Records of a nonagency certainly could become records of an agency as well. But if Congress found that federal funding and supervision did not justify direct access to the grantee's records, as it clearly did, we fail to see why we should nevertheless conclude that those identical activities were intended to permit indirect access through an expansive definition of "agency records."[13] Such a conclusion *182 would not implement the intent of Congress; it would defeat it. These considerations do not finally conclude the inquiry, for conceivably other facts might indicate that the documents could be "agency records" even though generated by a private grantee. The definition of "agency" and congressional policy towards grantee records indicate, however, that Congress did not intend that grant supervision short of Government control serve as a sufficient basis to make the private records "agency records" under the Act, and reveal a congressional determination to keep federal grantees free from the direct obligations imposed by the FOIA. In ascertaining the intended expanse of the term "agency records" then, we must, of course, construe the Act with regard both for the congressional purpose of increasing public access to governmental records and for this equally explicit purpose of retaining grantee autonomy. B Petitioners seek to prevail on their second and third theories, even though their first be rejected, by invoking a broad definition of "agency records," so as to include all documents created by a private grantee to which the Government has access, and which the Government has used. We do not believe that this broad definition of "agency records," a term undefined in the FOIA, is supported by either the language of that Act or its legislative history. We instead agree with the opinions of the courts below that Congress contemplated that an agency must first either create or obtain a record as a prerequisite to its becoming an "agency record" within the meaning of the FOIA. While it would be stretching the ordinary meaning of the words to call the data in question here "agency records," we need not rest our conclusions solely on the "plain language" rule of statutory construction. The use of the term "record" by Congress in two other Acts, and the structure *183 and legislative history of the FOIA alike support the same conclusion. Although Congress has supplied no definition of agency records in the FOIA, it has formulated a definition in other Acts. The Records Disposal Act, in effect at the time Congress enacted
|
Justice Rehnquist
| 1,980 | 19 |
majority
|
Forsham v. Harris
|
https://www.courtlistener.com/opinion/110218/forsham-v-harris/
|
Records Disposal Act, in effect at the time Congress enacted the Freedom of Information Act, provides the following threshold requirement for agency records: "`records' includes all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business." 44 U.S. C. 3301.[14] (Emphasis added.) The Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 23-24 (1967), S. Doc. No. 93-82, pp. 222-223 (1974), concludes that Congress intended this aspect of the Records Act definition to apply to the Freedom of Information Act. The same standard emerges in the Presidential Records Act of The term "presidential records" is defined as "documentary materials created or received by the President." 44 U.S. C. 2201 (2) (1976 ed., Supp. II). (Emphasis added.) While these definitions are not dispositive *184 of the proper interpretation of congressional use of the word in the FOIA, it is not insignificant that Congress has associated creation or acquisition with the concept of a governmental record. The text, structure, and legislative history of the FOIA itself reinforce that significance in this case. The only direct reference to a definition of records in the legislative history, of which we are aware, occurred during the Senate hearings leading to the enactment of FOIA. A representative of the Interstate Commerce Commission commented that "[s]ince the word `records' is not defined, we assume that it includes all papers which an agency preserves in the performance of its functions." Administrative Procedure Act: Hearings on S. 1160 et al. before the Sub-committee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 244 (1965).[15] The legislative history of the FOIA abounds with other references to records acquired by an agency. For example, the legislative Reports clarify that confidential information "submitted to a Government agency," "obtained by the Government," or "given to an agency" otherwise subject to disclosure, was made exempt. S. Rep. No. 813, 89th Cong., 1st Sess., 9 (1965), reprinted in Freedom of Information Act Source Book, S. Doc. No. 93-82, p. 44 (Comm. Print 1974); H. R. Rep. No. 89th Cong., 2d Sess. (1966), reprinted in Source Book, at 31. Section 552 (4) provides the strongest structural support for this construction. This section exempts trade secrets and commercial or financial information "obtained from a person." This exemption was designed to protect confidential information "submitted" by a borrower to a lending agency or "obtained by the Government"
|
Justice Rehnquist
| 1,980 | 19 |
majority
|
Forsham v. Harris
|
https://www.courtlistener.com/opinion/110218/forsham-v-harris/
|
borrower to a lending agency or "obtained by the Government" through questionnaires or other inquiries, where such information "would customarily not be released to the public by the person from whom it was *185 obtained." S. Rep. No. 813, ; H. R. Rep. No. It is significant that Congress did not include a similar exemption for confidential information contained in records which had never been "obtained from a person." It is obvious that this omission does not reflect a congressional judgment that records remaining in private control are not similarly deserving of this exemption, but rather a judgment that records which have never passed from private to agency control are not agency records which would require any such exemption. This possessory emphasis is buttressed by similar considerations implicit in the use of the word "withholding" in the statutory framework. See Kissinger v. Reporters Committee for Freedom of the Press, ante, p. 136.[16] The same focus emerges in a congressional amendment to the Securities Exchange Act of 1934. That Act had provided its own standards for public access to documents generated by the Act. Congress amended the Act to provide: "For purposes of [the FOIA] the term `records' includes all applications, statements, reports, contracts, correspondence, notices, and other documents filed with or otherwise obtained by the Commission pursuant to this chapter or otherwise." (Emphasis added.) 15 U.S. C. 78x. We think that the weight this construction lends to our conclusion is overborne neither by an agency's potential access to the grantee's information nor by its reliance on that information in carrying out the various duties entrusted to it by Congress. The Freedom of Information Act deals with "agency records," not information in the abstract. Petitioners place great reliance on the fact that HEW has a right of access to the data, and a right if it so chooses to obtain permanent custody of the UGDP records. 45 CFR 74.24, *186 74.21 (1979). But in this context the FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained.[17] To construe the FOIA to embrace the latter class of documents would be to extend the reach of the Act beyond what we believe Congress intended. We rejected a similar argument in by holding that the FOIA imposes no duty on the agency to create records. By ordering HEW to exercise its right of access, we effectively would be compelling the agency to "create" an agency record since prior to that exercise the record was not a record of the agency. Thus without first
|
Justice Blackmun
| 1,988 | 11 |
majority
|
Doe v. United States
|
https://www.courtlistener.com/opinion/112123/doe-v-united-states/
|
This case presents the question whether a court order compelling a target of a grand jury investigation to authorize foreign banks to disclose records of his accounts, without identifying those documents or acknowledging their existence, violates the target's Fifth Amendment privilege against self-incrimination. I Petitioner, named here as John is the target of a federal grand jury investigation into possible federal offenses arising from suspected fraudulent manipulation of oil cargoes and receipt of unreported income. appeared before the grand jury pursuant to a subpoena that directed him to produce records of transactions in accounts at three named banks in the Cayman Islands and Bermuda. produced some bank records and testified that no additional records responsive *203 to the subpoena were in his possession or control. When questioned about the existence or location of additional records, invoked the Fifth Amendment privilege against self-incrimination. The United branches of the three foreign banks also were served with subpoenas commanding them to produce records of accounts over which had signatory authority. Citing their governments' bank-secrecy laws, which prohibit the disclosure of account records without the customer's consent,[1] the banks refused to comply. See App. to Pet. for Cert. 1a, n. 2. The Government then filed a motion with the United District Court for the Southern District of Texas that the court order to sign 12 forms consenting to disclosure of any bank records respectively relating to 12 foreign bank accounts over which the Government knew or suspected that had control. The forms indicated the account numbers and described the documents that the Government wished the banks to produce. The District Court denied the motion, reasoning that by signing the consent forms, would necessarily be admitting *204 the existence of the accounts. The District Court believed, moreover, that if the banks delivered records pursuant to the consent forms, those forms would constitute "an admission that [] exercised signatory authority over such accounts." at 20a. The court speculated that the Government in a subsequent proceeding then could argue that must have guilty knowledge of the contents of the accounts. Thus, in the court's view, compelling to sign the forms was compelling him "to perform a testimonial act that would entail admission of knowledge of the contents of potentially incriminating documents," at 20a, n. 6, and such compulsion was prohibited by the Fifth Amendment. The District Court also noted that had not been indicted, and that his signing of the forms might provide the Government with the incriminating link necessary to obtain an indictment, the kind of "fishing expedition" that the Fifth Amendment was designed to prevent.
|
Justice Blackmun
| 1,988 | 11 |
majority
|
Doe v. United States
|
https://www.courtlistener.com/opinion/112123/doe-v-united-states/
|
"fishing expedition" that the Fifth Amendment was designed to prevent. at 21a. The Government sought reconsideration. Along with its motion, it submitted to the court a revised proposed consent directive that was substantially the same as that approved by the Eleventh Circuit in United The form purported to apply to any and all accounts over which had a right of withdrawal, without acknowledging the existence of any such account.[2] The District Court denied this motion also, reasoning *205 that compelling execution of the consent directive might lead to the uncovering and linking of to accounts that the grand jury did not know were in existence. The court concluded that execution of the proposed form would "admit signatory authority over the speculative accounts [and] would implicitly authenticate any records of the speculative accounts provided by the banks pursuant to the consent." App. to Pet. for Cert. 13a, n. The Court of Appeals for the Fifth Circuit reversed in an unpublished per curiam opinion, judgt. order reported at Relying on its intervening decision in In re United Grand Jury Proceedings (Cid), the court held that could not assert his Fifth Amendment privilege as a basis for refusing to sign the consent directive, because the form "did not have testimonial significance" and therefore its compelled execution would not violate 's Fifth Amendment rights. App. to Pet. for Cert. a.[3] On remand, the District Court ordered petitioner to execute the consent directive. He refused. The District Court accordingly found petitioner in civil contempt and ordered *206 that he be confined until he complied with the order. at 2a. The court stayed imposition of sanction pending appeal and application for writ of certiorari. at 2a-3a. The Fifth Circuit affirmed the contempt order, again in an unpublished per curiam, concluding that its prior ruling constituted the "law of the case" and was dispositive of 's appeal. at 3a; judgt. order reported at We granted certiorari, to resolve a conflict among the Courts of Appeals as to whether the compelled execution of a consent form directing the disclosure of foreign bank records is inconsistent with the Fifth Amendment.[4] We conclude that a court order compelling the execution of such a directive as is at issue here does not implicate the Amendment. II It is undisputed that the contents of the foreign bank records sought by the Government are not privileged under the Fifth Amendment. See Braswell v. United ante, at 108-110; United ; There also is no question that the foreign banks cannot invoke the Fifth Amendment in declining to produce the documents; the privilege does not
|
Justice Blackmun
| 1,988 | 11 |
majority
|
Doe v. United States
|
https://www.courtlistener.com/opinion/112123/doe-v-united-states/
|
in declining to produce the documents; the privilege does not extend to such artificial entities. See Braswell v. United ante, at 102-103; Similarly, petitioner asserts no Fifth Amendment right to prevent the banks from disclosing the account records, for the Constitution "necessarily does not proscribe incriminating statements elicited from another." *20 Petitioner's sole claim is that his execution of the consent forms directing the banks to release records as to which the banks believe he has the right of withdrawal has independent testimonial significance that will incriminate him, and that the Fifth Amendment prohibits governmental compulsion of that act. The Self-Incrimination Clause of the Fifth Amendment reads: "No person shall be compelled in any criminal case to be a witness against himself." This Court has explained that "the privilege protects a person only against being incriminated by his own compelled testimonial communications." citing ; United v. ; and The execution of the consent directive at issue in this case obviously would be compelled, and we may assume that its execution would have an incriminating effect.[5] The question on which this case turns is whether the act of executing the form is a "testimonial communication." The parties disagree about both the meaning of "testimonial" and whether the consent directive fits the proposed definitions. A Petitioner contends that a compelled statement is testimonial if the Government could use the content of the speech or writing, as opposed to its physical characteristics, to further a criminal investigation of the witness. The second half of petitioner's "testimonial" test is that the statement must be incriminating, which is, of course, already a separate requirement *208 for invoking the privilege. Thus, contends, in essence, that every written and oral statement significant for its content is necessarily testimonial for purposes of the Fifth Amendment.[6] Under this view, the consent directive is testimonial because it is a declarative statement of consent made by to the foreign banks, a statement that the Government will use to persuade the banks to produce potentially incriminating account records that would otherwise be unavailable to the grand jury. The Government, on the other hand, suggests that a compelled statement is not testimonial for purposes of the privilege, unless it implicitly or explicitly relates a factual assertion or otherwise conveys information to the Government. It argues that, under this view, the consent directive is not *209 testimonial because neither the directive itself nor 's execution of the form discloses or communicates facts or information. Petitioner disagrees. The Government's view of the privilege, apparently accepted by the Courts of Appeals that have considered compelled consent
|
Justice Blackmun
| 1,988 | 11 |
majority
|
Doe v. United States
|
https://www.courtlistener.com/opinion/112123/doe-v-united-states/
|
by the Courts of Appeals that have considered compelled consent forms,[] is derived largely from this Court's decisions in and The issue presented in those cases was whether the act of producing subpoenaed documents, not itself the making of a statement, might nonetheless have some protected testimonial aspects. The Court concluded that the act of production could constitute protected testimonial communication because it might entail implicit statements of fact: by producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic. United and n. 11; -410; See Braswell v. United ante, at 104; ante, at 122 (dissenting opinion). Thus, the Court made clear that the Fifth Amendment privilege against self-incrimination applies to acts that imply assertions of fact. We reject petitioner's argument that this test does not control the determination as to when the privilege applies to oral or written statements. While the Court in and did not purport to announce a universal test for determining the scope of the privilege, it also did not purport to establish a more narrow boundary applicable to acts alone. To the contrary, the Court applied basic Fifth Amendment principles.[8] An examination of the Court's application of these *210 principles in other cases indicates the Court's recognition that, in order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.[9] Only then is a person compelled to be a "witness" against himself. This understanding is perhaps most clearly revealed in those cases in which the Court has held that certain acts, though incriminating, are not within the privilege. Thus, a suspect may be compelled to furnish a blood sample, ; to provide a handwriting exemplar, -26, or a voice exemplar, United v. ; to stand in a lineup, United v. -222; and to wear particular clothing, Holt v. United These decisions are grounded on the proposition that "the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." 384 U. S., at 61. The Court accordingly held that the privilege *211 was not implicated in each of those cases, because the suspect was not required "to disclose any knowledge he might have," or "to speak his guilt," -223. See 410 U. S., at ; -26. It is the "extortion of information from the accused," 409 U. S., at the attempt to force him "to disclose the contents of his own mind," Curcio v. United (195), that implicates the
|
Justice Blackmun
| 1,988 | 11 |
majority
|
Doe v. United States
|
https://www.courtlistener.com/opinion/112123/doe-v-united-states/
|
his own mind," Curcio v. United (195), that implicates the Self-Incrimination Clause. See also Kastigar v. United (192) (emphasis added). "Unless some attempt is made to secure a communication written, oral or otherwise upon which reliance is to be placed as involving [the accused's] consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one." 8 Wigmore 2265, p. 386.[10] *212 It is consistent with the history of and the policies underlying the Self-Incrimination Clause to hold that the privilege may be asserted only to resist compelled explicit or implicit disclosures of incriminating information. Historically, the privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him. Such was the process of the ecclesiastical courts and the Star Chamber the inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source. See 42 U.S. 463, 40-41 ; 8 Wigmore 2250; E. Griswold, The Fifth Amendment Today 2-3 (1955). The major thrust of the policies undergirding the privilege is to prevent such compulsion. The Self-Incrimination Clause reflects " `a judgment that the prosecution should [not] be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused' " (emphasis added). Ullmann v. United 42 quoting Maffie v. United 22 The Court in 38 U.S. 52 explained that the privilege is founded on "our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates `a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,'; our respect for the inviolability of the human personality and of the right of each individual `to a private enclave where he may lead a private life,' *213.; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes `a shelter to the guilty,' is often `a protection to the innocent.' " These policies are served when the privilege is asserted to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him
|
Justice Blackmun
| 1,988 | 11 |
majority
|
Doe v. United States
|
https://www.courtlistener.com/opinion/112123/doe-v-united-states/
|
reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government.[11] We are not persuaded by petitioner's arguments that our articulation of the privilege fundamentally alters the power of the Government to compel an accused to assist in his prosecution. There are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts. The vast majority of verbal statements thus will be testimonial and, to that extent at least, will fall within *214 the privilege.[12] Furthermore, it should be remembered that there are many restrictions on the government's prosecutorial practices in addition to the Self-Incrimination Clause. Indeed, there are other protections against governmental efforts to compel an unwilling suspect to cooperate in an investigation, including efforts to obtain information from him.[13] We are confident that these provisions, together with the Self-Incrimination Clause, will continue to prevent abusive investigative techniques. B The difficult question whether a compelled communication is testimonial for purpose of applying the Fifth Amendment often depends on the facts and circumstances of the particular *215 case. This case is no exception. We turn, then, to consider whether 's execution of the consent directive at issue here would have testimonial significance. We agree with the Court of Appeals that it would not, because neither the form, nor its execution, communicates any factual assertions, implicit or explicit, or conveys any information to the Government. The consent directive itself is not "testimonial." It is carefully drafted not to make reference to a specific account, but only to speak in the hypothetical. Thus, the form does not acknowledge that an account in a foreign financial institution is in existence or that it is controlled by petitioner. Nor does the form indicate whether documents or any other information relating to petitioner are present at the foreign bank, assuming that such an account does exist. Cf. United 32 F. 2d, at 818; In re Grand Jury Proceedings (Ranauro), 814 F.2d 91, 93 ; In re Grand Jury Subpoena, 110 cert. pending sub nom. Coe v. United No. 8-51; In re United Grand Jury Proceedings (Cid), 6 F. 2d, at 1132. The form does not even identify the relevant bank. Although the executed form allows the Government access to a potential source of evidence, the directive itself does not point the Government toward hidden accounts or otherwise provide information that will assist the prosecution in uncovering evidence. The Government must locate that evidence " `by the independent labor of its officers,' " quoting
|
Justice Blackmun
| 1,988 | 11 |
majority
|
Doe v. United States
|
https://www.courtlistener.com/opinion/112123/doe-v-united-states/
|
" `by the independent labor of its officers,' " quoting 36 U.S. 568, As in the Government is not relying upon the " `truth-telling' " of 's directive to show the existence of, or his control over, foreign bank account records. See quoting 8 Wigmore 2264, p. 380. Given the consent directive's phraseology, petitioner's compelled act of executing the form has no testimonial significance either. By signing the form, makes no statement, *216 explicit or implicit, regarding the existence of a foreign bank account or his control over any such account. Nor would his execution of the form admit the authenticity of any records produced by the bank. Cf. United 32 F. 2d, at 818-819; In re Grand Jury Subpoena, 826 F. 2d, at 110. Not only does the directive express no view on the issue, but because petitioner did not prepare the document, any statement by to the effect that it is authentic would not establish that the records are genuine. Cf. Authentication evidence would have to be provided by bank officials. Finally, we cannot agree with petitioner's contention that his execution of the directive admits or asserts 's consent. The form does not state that "consents" to the release of bank records. Instead, it states that the directive "shall be construed as consent" with respect to Cayman Islands and Bermuda bank-secrecy laws. Because the directive explicitly indicates that it was signed pursuant to a court order, 's compelled execution of the form sheds no light on his actual intent or state of mind.[14] The form does "direct" the *21 bank to disclose account information and release any records that "may" exist and for which "may" be a relevant principal. But directing the recipient of a communication to do something is not an assertion of fact or, at least in this context, a disclosure of information. In its testimonial significance, the execution of such a directive is analogous to the production of a handwriting sample or voice exemplar: it is a nontestimonial act. In neither case is the suspect's action compelled to obtain "any knowledge he might have."[15] We read the directive as equivalent to a statement by that, although he expresses no opinion about the existence *218 of, or his control over, any such account, he is authorizing the bank to disclose information relating to accounts over which, in the bank's opinion, can exercise the right of withdrawal. Cf. Ghidoni, 32 F. 2d, at 818, n. 8 (similarly interpreting a nearly identical consent directive). When forwarded to the bank along with a subpoena, the executed directive, if effective
|
Justice Blackmun
| 1,988 | 11 |
majority
|
Doe v. United States
|
https://www.courtlistener.com/opinion/112123/doe-v-united-states/
|
bank along with a subpoena, the executed directive, if effective under local law,[16] will simply make it possible for the recipient bank to comply with the Government's request to produce such records. As a result, if the Government obtains bank records after signs the directive, the only factual statement made by anyone will be the bank's implicit declaration, by its act of production in response to the subpoena, that it believes the accounts to be petitioner's. Cf. 412-413. The fact that the bank's customer has directed the disclosure of his records "would say nothing about the correctness of the bank's representations." Brief for United 21-22. Indeed, the Second and Eleventh Circuits have concluded that consent directives virtually identical to the one here are inadmissible as an admission by the signator of either control or existence. In re Grand Jury Subpoena, 826 F. 2d, at 111; Ghidoni, 32 F. 2d, at 818, and n. 9. *219 III Because the consent directive is not testimonial in nature, we conclude that the District Court's order compelling petitioner to sign the directive does not violate his Fifth Amendment privilege against self-incrimination. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.
|
Justice White
| 1,979 | 6 |
dissenting
|
Montana v. United States
|
https://www.courtlistener.com/opinion/110022/montana-v-united-states/
|
I disagree that the Government was estopped from litigating its claim in federal court by virtue of the earlier action in the courts of Montana. And on the merits I think the Montana gross receipts tax is constitutionally infirm. Thus, I would affirm the decision below. *165 I It is basic that the principle of collateral estoppel "must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts remain unchanged." The Court does not dispute this, but maintains that discrepancies in the facts underlying the state and federal actions were of no moment. It is clear, however, that the Montana Supreme Court assumed in Kiewit I that the tax under scrutiny was a tax-enforcing, rather than a revenue-collecting, measure. The significance of that supposition, in my view, is refuted neither by the opinion in Kiewit I nor by the state court's subsequent pronouncements in Kiewit II. That the assumption lost its force by the time of the federal litigation is undisputed. By then the Federal Government had abandoned its policy of requiring contractors with whom it dealt to forgo credits available under the gross receipts law. Though federal contractors accordingly availed themselves of the credits and refunds allowable under the law, "the uncontroverted evidence in this case establishes that federal contractors are still subject to a [net] gross revenue tax of one-half of one percent." Ante, at 158-159. Because the facts developed before the three-judge court cast the constitutional issues in a wholly different light, I think the court properly proceeded to decide those issues uninhibited by the prior state adjudication. At the outset of its discussion in Kiewit I, the Montana Supreme Court labored to demonstrate that the gross receipts tax in issue was a tax-enforcing measure, in that funds collected pursuant thereto would be applied, or credited, against taxes otherwise due. The court understood that the tax had not in practice resulted in a total washout of gross receipts payments, but it attributed this to the Federal Government's policy prohibiting certain contractorssuch as the Kiewit Co. *166 itselffrom taking refunds and credits available under the law, and to ignorance of, and indifference to, the credit provisions on the part of other contractors. The court maintained that, aside from such aberrations, the Act was intended to and would "operate as a revenue enforcing measure." Peter Kiewit Sons' The majority surmises that the state court's extensive characterization of the tax was irrelevant to the court's constitutional analysis. But that view relegates
|
Justice White
| 1,979 | 6 |
dissenting
|
Montana v. United States
|
https://www.courtlistener.com/opinion/110022/montana-v-united-states/
|
irrelevant to the court's constitutional analysis. But that view relegates to dicta the state court's careful appraisal of the operation and impact of the tax. By inspecting the state court's constitutional analysis independently of that court's evaluation of the nature of the tax, the majority assumes that the constitutional adjudication proceeded in vacuo. The logic of the state court's decision may well extend to a revenue-raising measure. But to say that Kiewit I may be persuasive authority on that score is not to establish that it has adjudicated the issue. Moreover, the Court's reliance on Kiewit II to demonstrate the immateriality of the "washout" nature of the tax to the decision in Kiewit I is misplaced. I recognize that the Montana Supreme Court regarded Kiewit's second attack launched after the contractual credit restrictions were removed by the Governmentas foreclosed by the judgment in the first suit. But in addressing Kiewit's objection to the application of the tax in a manner to raise revenue, the court acknowledged that "it may be that Kiewit would be entitled to a refund or some other administrative remedy." Peter Kiewit Sons' The statute, of course, contemplates no such remedy, nor did the court affirmatively construe it to authorize one.[1] Yet the court's remark leaves *167 unclear whether, absent such a remedy, the court would persist in holding the tax constitutional. The statement underscores the court's assumption in Kiewit I that the gross receipts tax was a tax-enforcing device and suggests correlatively that the decision there did not condone imposition of an unmitigated positive tax solely on public contractors.[2] The majority is unsound in inferring from Kiewit II that the ruling in Kiewit I was insensitive to the then-presumed "washout" character of the gross receipts tax. As I see it, then, there was a "modification of the significant facts" that rendered the prior state "determination obsolete at least for future purposes," ; and the Government was free to litigate its constitutional challenge in federal court. II On the merits, the judgment below should be sustained. There is nothing wrong, of course, with a state gross receipts tax of general applicability that incidentally applies to contractors who deal with the Federal Government thus increasing its construction costs. United ; "So long as the tax is not directly laid on the Federal Government, it is valid if nondiscriminatory. or until Congress declares otherwise." United at In we stressed the requirement that the state tax be "imposed equally on the other similarly situated constituents of the State." Such concern for discriminatory *168 taxation "returns to the original intent of
|
Justice White
| 1,979 | 6 |
dissenting
|
Montana v. United States
|
https://www.courtlistener.com/opinion/110022/montana-v-united-states/
|
for discriminatory *168 taxation "returns to the original intent of ]." We observed that "[t]he political check against abuse of the taxing power found lacking in M`Culloch is present where the State imposes a nondiscriminatory tax only on its constituents or their artificially owned entities; and M`Culloch foresaw the unfairness in forcing a State to exempt private individuals with beneficial interests in federal property from taxes imposed on similar interests held by others in private property." The Montana gross receipts tax cannot survive application of the foregoing principles. It is not a law generally embracing all similarly situated state constituents doing business in the private and public sectors. While mandating collection of revenue from contractors who transact with public entities, the law passes over all contractors who deal with private parties. Thus, the "political check" that would have been provided by private-sector contractors "against abuse of the taxing power [is] lacking." Appellants maintain that contractors who deal with private enterprises are not situated similarly to those who transact with public bodies. They point to special problems associated with enforcement of state tax laws against contractors prone to move about the State in pursuit of large public contracts. The gross receipts tax measure was necessary, it is argued, in order to facilitate enforcement of other tax laws against such contractors. Concededly, however, the same problems exist with respect to large private contractors; and even assuming that differentiation between public-sector and private-sector contractors is warranted in the context of tax enforcement measures, appellants' representations provide no basis for discriminating in regard to revenue raising. The Montana Supreme Court in the Kiewit litigation defended the classification for equal protection purposes by submitting that the public's stake in the safety of building *169 projects, and hence in the qualifications of public contractors, warranted treating public-sector contractors differently from their private-sector counterparts. But these considerations, like the matters advanced by appellants, fail to explain why a tax is collected from the former but not the latter.[3] Moreover, though the law may be sustainable against an equal protection assault, the indulgent standard used in that area will not be applied when federal supremacy is threatened. See Phillips Chemical In such circumstances, disparate treatment "must be justified by significant differences between the two classes"; there must be "considerations provid[ing] solid support for the classification." It seems plain, then, that private-sector and public-sector contractors are similarly situated for purposes of this litigation. III Appellants contend, nonetheless, that it is enough that the tax reaches contractors dealing with all public entitiesstate or federal. Appellants root their contention in this
|
Justice White
| 1,979 | 6 |
dissenting
|
Montana v. United States
|
https://www.courtlistener.com/opinion/110022/montana-v-united-states/
|
public entitiesstate or federal. Appellants root their contention in this Court's statement in Phillips Chemical that a State must "treat those who deal with the Government as well as it treats those with whom it deals itself." (Emphasis added.) But Phillips furnishes no support for appellants' position. There, the Court held unconstitutional a state tax scheme that treated lessees *170 of federal property more severely than lessees of state property. Even before addressing that issue, however, the Court ascertained that there was "no discrimination between the Government's lessees and lessees of private property." Thus, the Court in Phillips evinced concern for equal treatment of all similarly situated persons connected with both the private and public sector, not just of persons within the public sector. In any event. I see no basis whatsoever for extracting from the principle that a State may not favor itself over the Federal Government the further proposition that a State may favor its private-sector constituents so long as contractors working for public bodies are taxed. Indeed, in the Court sustained the tax only after assuring itself that persons who rented federal property were "no worse off under California tax laws than those who work for private employers and rent houses in the private sector." Such laws, reaching broadly across the public and private sectors, are characteristic of those this Court has sustained. E. g., United ; ; ; ; Silas Mason There is good reason to insist that a state tax be "imposed equally" on all "similarly situated constituents of the State," United whether connected with the public sector or private. Broad application of a tax is necessary to guarantee an efficacious "political check" on potentially abusive taxation. The Montana gross receipts tax, limited as it is to public-sector contractors, provides little such assurance. Taxation of contractors dealing directly with the State or state agencies affords no safeguard against discriminatory treatment of federal contracting agencies and the contractors with whom they deal. Any tax *171 increase passed along by a contractor would be borne fully by a federal agency but would be offset by the corresponding tax revenues in the case of the State; from the State's perspective the tax is a washout. Municipalities and local districts, it is true, do not enjoy the same advantage, and they may resist tax increases that would, if successfully enforced, burden them and the Federal Government alike. But, at least potentially, local subdivisions may secure offsetting state assistance by indirection,[4] and that may diminish their incentive to oppose tax hikes. Even assuming, however, that local public bodies share an
|
Justice White
| 1,979 | 6 |
dissenting
|
Montana v. United States
|
https://www.courtlistener.com/opinion/110022/montana-v-united-states/
|
hikes. Even assuming, however, that local public bodies share an interest with the Federal Government in restraining taxes, it escapes me why the Government must acquiesce in the limited protection they provide when an enhanced political check would ensue from extension of the tax to other similarly situated state constituents. As I have indicated, there is no support for such a notion in the decisions of this Court. McCulloch, itself, condoned state taxation of private interests in federal property "in common with other property of the same description throughout the State." And in we observed that escalation of a state tax so as to destroy or impair a federal function might be forestalled by imposition of the tax "on the income and property interests of all other residents and voters of the State." n. 11. These decisions counsel against nice determinations regarding the political leverage of this group or that and establish the simple but fundamental proposition that the Federal Government is entitled to the full measure of protection *172 derivable from inclusion of all similarly situated state constituents in the class subject to the tax. Appellants suggested at oral argument that private-sector contracting comprises a relatively small percentage of all contracting in the State and argue that exclusion of private-sector contractors from the ambit of the gross receipts tax is therefore excusable. But appellants do not seriously contend that private-sector contracting in Montana is de minimis, nor would any such assertion find support in the record.[5] Private contracting parties, if subjected to this tax, would provide significant additional protection against abuse of the state taxing power. Exempting the private sector from the Montana gross receipts tax was accordingly contrary to the Constitution. As I believe the three-judge court properly reached and decided the merits of the Government's claim, I dissent from reversal of the judgment below.
|
Justice Blackmun
| 1,987 | 11 |
dissenting
|
Bourjaily v. United States
|
https://www.courtlistener.com/opinion/111938/bourjaily-v-united-states/
|
I disagree with the Court in three respects:[1] First, I do not believe that the Federal Rules of Evidence changed the long- and well-settled law to the effect that the preliminary questions of fact, relating to admissibility of a nontestifying co-conspirator's statement, must be established by evidence independent of that statement itself. Second, I disagree with the Court's conclusion that allowing the co-conspirator's statement to be considered in the resolution of these factual questions will remedy problems of the statement's unreliability. In my view, the abandonment of the independent-evidence requirement will lead, instead, to the opposite result. This is because the abandonment will eliminate one of the few safeguards of reliability that this exemption from the hearsay definition possesses. Third, because the Court alters the traditional hearsay exemption especially an aspect of it that contributes to the reliability of an admitted statement I do not believe that the Court can rely on the "firmly rooted hearsay exception" rationale, see to avoid a determination whether any "indicia of reliability" support the co-conspirator's statement, as the Confrontation Clause surely demands. I The Court recognizes that, according to the common-law view of the exemption of a co-conspirator's statement from the hearsay definition, an offering party was required to establish, as preliminary factual matters, the existence of a conspiracy and a defendant's participation therein by evidence apart from the co-conspirator's statement. Ante, at 177. In the Court's view, this settled law was changed in 1975 by the adoption of the Federal Rules of Evidence, particularly *187 Rules 104(a) and 1101(d)(1). As the Court explains, the plain language of Rule 104(a) allows a trial court to consider any information, including hearsay, in making preliminary factual determinations relating to Rule 801(d)(2)(E). Ante, at 177-178. Thus, reasons the Court, under the Rule a trial court should be able to examine the co-conspirator's statement itself in resolving the threshold factual question whether a conspiracy, to which the defendant belonged, existed. According to the Court, in light of Rule 104(a)'s "plain meaning" there is no need to take the "extraordinary" step of looking to legislative history for confirmation of this meaning. Ante, at 178.[2] I agree that a federal rule's "plain meaning," when it appears, should not be lightly ignored or dismissed. The inclination to accept what seems to be the immediate reading of a federal rule, however, must be tempered with caution when, as in the case of a Federal Rule of Evidence, the rule's complex interrelations with other rules must be understood before one can resolve a particular interpretive problem. See generally Cleary, Preliminary
|
Justice Blackmun
| 1,987 | 11 |
dissenting
|
Bourjaily v. United States
|
https://www.courtlistener.com/opinion/111938/bourjaily-v-united-states/
|
can resolve a particular interpretive problem. See generally Cleary, Preliminary Notes on Reading the Rules of Evidence, In addition, if the language of a rule plainly appears to address a specific problem, one naturally would expect legislative history (if it exists) to confirm this plain meaning. In this case, Rule 104(a) cannot be read apart from Rule 801(d)(2)(E), which was a codification of the common-law exemption of co-conspirator statements from the hearsay definition, an exemption that included the independent-evidence requirement. An examination of the legislative history of Rule 801(d)(2)(E) reveals that neither the drafters nor Congress intended to transform this requirement in any way. In sum, the Court espouses an overly *188 rigid interpretive approach; a more complete analysis casts significant and substantial doubt on the Court's "plain meaning" easy solution. A In order to understand why the Federal Rules of Evidence adopted without change the common-law co-conspirator exemption from hearsay, and why this adoption signified the Advisory Committee's intent to retain the exemption's independent-evidence requirement, it is useful to review briefly the contours of this exemption as it stood before enactment of the Rules. By all accounts, the exemption was based upon agency principles, the underlying concept being that a conspiracy is a common undertaking where the conspirators are all agents of each other and where the acts and statements of one can be attributed to all. See 4 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 801(d)(2)(E)[01], pp. 801-232 and 801-233 (1985) (Weinstein & Berger); The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, As Judge Learned Hand explained this in a frequently quoted remark: "When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made a `partnership in crime.' What one does pursuant to their common purpose, all do, and, as declarations may be such acts, they are competent against all." Van (CA2), cert. denied sub nom. Each of the components of this common-law exemption, in turn, had an agency justification. To fall within the exemption, the co-conspirator's statement had to be made "in furtherance of" the conspiracy, a requirement that arose from the agency rationale that an agent's acts or words could be attributed to his principle only so long as the agent was acting *189 within the scope of his employment. See Hearsay and Conspiracy: A Reexamination of the Co-Conspirators' Exception to the Hearsay Rule, ; 4 D. Louisell & C. Mueller, Federal Evidence 427, p. 348 (Louisell & Mueller). The statement also had to be made "during the course of"
|
Justice Blackmun
| 1,987 | 11 |
dissenting
|
Bourjaily v. United States
|
https://www.courtlistener.com/opinion/111938/bourjaily-v-united-states/
|
statement also had to be made "during the course of" the conspiracy. This feature necessarily accompanies the "in furtherance of" requirement, for there must be an employment or business relationship in effect between the agent and principal, in accordance with which the agent is acting, for the principal to be bound by his agent's deeds or words. See 52 Mich. L. Rev., at ; 4 Louisell & Mueller 337. The final feature of the co-conspirator hearsay exemption, the independent-evidence requirement, directly corresponds to the agency concept that an agent's statement cannot be used alone to prove the existence of the agency relationship. "Evidence of a statement by an agent concerning the existence or extent of his authority is not admissible against the principal to prove its existence or extent, unless it appears by other evidence that the making of such statement was within the authority of the agent or, as to persons dealing with the agent, within the apparent authority or other power of the agent" (emphasis added). Restatement (Second) of Agency 285 (1958). See 52 Mich. L. Rev., at The reason behind this concept is that the agent's authority must be traced back to some act or statement by the alleged principal. See 1 F. Mechem, Law of Agency 285, p. 205 (1914). Thus, unlike many common-law hearsay exceptions, the coconspirator exemption from hearsay with its agency rationale was not based primarily upon any particular guarantees of reliability or trustworthiness that were intended to ensure the truthfulness of the admitted statement and to compensate for the fact that a party would not have the opportunity to test its veracity by cross-examining the declarant. See 85 Harv. L. Rev., at As such, this exemption *190 was considered to be a "vicarious admission."[3] Although not an admission by a defendant himself, the vicarious admission was a statement imputed to the defendant from the co-conspirator on the basis of their agency relationship. As with all admissions, an "adversary system," rather than a reliability, rationale was used to account for the exemption to the ban on hearsay: it was thought that a party could not complain of the deprivation of the right to cross-examine himself (or another authorized to speak for him) or to advocate his own, or his agent's, untrustworthiness. See E. Cleary, McCormick on Evidence 262, p. 775 (3d ed. 1984). The coconspirator "admission" exception was also justified on the ground that the need for this evidence, which was particularly valuable in prosecuting a conspiracy, permitted a somewhat reduced concern for the reliability of the statement.[4] See Saltzburg, Standards of Proof
|
Justice Blackmun
| 1,987 | 11 |
dissenting
|
Bourjaily v. United States
|
https://www.courtlistener.com/opinion/111938/bourjaily-v-united-states/
|
the reliability of the statement.[4] See Saltzburg, Standards of Proof and Preliminary Questions of Fact, ; R. Lempert & S. Saltzburg, A Modern Approach to Evidence 395 (2d ed. 1982) (Lempert & Saltzburg). Although, under common law, the reliability of the coconspirator's statement was never the primary ground justifying its admissibility, there was some recognition that this *191 exemption from the hearsay rule had certain guarantees of trustworthiness, albeit limited ones. This justification for the exemption has been explained: "Active conspirators are likely to know who the members of the conspiracy are and what they have done. When speaking to advance the conspiracy, they are unlikely to describe non-members as conspirators, and they usually will have no incentive to misdescribe the actions of their fellow members." Lempert & Saltzburg 395. See also 4 J. Wigmore, Evidence 1080a, p. 199 ("[T]he general idea of receiving vicarious admissions, is that where the third person was, at the time of speaking, in circumstances that gave him substantially the same interest to know something about the matter in hand as had the now opponent, and the same motive to make a statement about it, that person's statements have approximately the same testimonial value as if the now opponent had made them") (emphasis in original). And the components of the exemption were understood to contribute to this reliability. When making a statement "during the course of" and "in furtherance of" a conspiracy, a conspirator could be viewed as speaking from the perspective of all the conspirators in order to achieve the common goals of the conspiracy, not from self-serving motives. See In particular, the requirement that a conspiracy be established by independent evidence also is seen to contribute to the reliability issue. Yet that requirement goes not so much to the reliability of the statement itself, as to the reliability of the process of admitting it: a statement cannot be introduced until independent evidence shows the defendant to be a member of an existing conspiracy. See ; Lempert & Saltzburg 395. *192 The Federal Rules of Evidence did not alter in any way this common-law exemption to hearsay.[5] The Rules essentially codify the components of this exemption: Rule 801 (d)(2)(E) provides that the co-conspirator's statement, to be admissible against a party, must be "by a coconspirator of a party during the course and in furtherance of the conspiracy." Moreover, the exemption was placed within the category of "not hearsay," as an admission, in contrast to the hearsay exceptions of Rules 803 and 804. The Advisory Committee explained that the exclusion of admission from the hearsay
|
Justice Blackmun
| 1,987 | 11 |
dissenting
|
Bourjaily v. United States
|
https://www.courtlistener.com/opinion/111938/bourjaily-v-united-states/
|
Committee explained that the exclusion of admission from the hearsay category is justified by the traditional "adversary system" rationale, not by any specific "guarantee of trustworthiness" used to justify hearsay exceptions. See Advisory Committee's Notes on Fed. Rule Evid. 801, 28 U.S. C. App., p. 717, 56 F. R. D. 183, 297 ; see also Note, Federal Rule of Evidence 801(d)(2)(E) and the Confrontation Clause: Closing the Window of Admissibility for Coconspirator Hearsay, 53 Ford. L. Rev. 1291, 1295, and n. 25 (1985). More importantly, by explicitly retaining the agency rationale for the exemption, the Advisory Committee expressed its intention that the exemption would remain identical to the common-law rule and that it would not be expanded in any way. The Advisory Committee recognized that this agency rationale had been subject to criticism.[6] The drafters *193 of the American Law Institute's Model Code of Evidence had gone so far as to abandon the agency justification and had eliminated the "in furtherance of" requirement, observing that "[t]hese statements are likely to be true, and are usually made with a realization that they are against the declarant's interest." Model Code of Evidence, Rule 508(b) commentary, p. 251 (1942). The Advisory Committee, however, declined to accept without reservation a reliability foundation for Rule 801(d)(2)(E).[7] The Advisory Committee thus decided to retain the agency justification, in general, and the "in furtherance of" language, in particular, as a compromise position. It thought that the traditional exemption appropriately balanced the prosecution's need for a co-conspirator's statements and the defendant's need for the protections against unreliable statements, protections provided by the components of the common-law exemption. See 4 Weinstein & Berger ¶ 801(d)(2)(E)[01], p. 801-235. The Advisory Committee, however, expressed its doubts about the agency rationale and, on the basis of these doubts, plainly stated that the exemption should not be changed or extended: "[T]he agency theory of conspiracy is at *194 best a fiction and ought not to serve as a basis for admissibility beyond that already established." Advisory Committee's Notes on Fed. Rule Evid. 801, 28 U.S. C. App., p. 718, 56 F. R. D., at 299. In light of this intention not to alter the common-law exemption, the Advisory Committee's Notes thus make very clear that Rule 801(d)(2)(E) was to include all the components of this exemption, including the independent-evidence requirement.[8] B Accordingly, when Rule 801(d)(2)(E) and Rule 104(a) are considered together an examination that the Court neglects to undertake there appears to be a conflict between the fact that no change in the co-conspirator hearsay exemption was intended by Rule 801(d)(2)(E)
|
Justice Blackmun
| 1,987 | 11 |
dissenting
|
Bourjaily v. United States
|
https://www.courtlistener.com/opinion/111938/bourjaily-v-united-states/
|
in the co-conspirator hearsay exemption was intended by Rule 801(d)(2)(E) and the freedom that Rule 104(a) gives a trial court to rely on hearsay in resolving preliminary factual questions. Although one must be somewhat of an interpretative funambulist to walk between the conflicting demands of these Rules in order to arrive at a resolution *195 that will satisfy their respective concerns, this effort is far to be preferred over accepting the easily available safety "net" of Rule 104(a)'s "plain meaning." The purposes of both Rules can be achieved by considering the relevant preliminary factual question for Rule 104(a) analysis to be the following: "whether a conspiracy that included the declarant and the defendant against whom a statement is offered has been demonstrated to exist on the basis of evidence independent of the declarant's hearsay statements" (emphasis added). S. Saltzburg & K. Redden, Federal Rules of Evidence Manual 735 This resolution sufficiently answers Rule 104(a)'s concern with allowing a trial court to consider hearsay in determining preliminary factual questions, because the only hearsay not available for its consideration is the statement at issue. The exclusion of the statement from the preliminary analysis maintains the common-law exemption unchanged. As the Court recognizes, ante, at 177, in the more than 10 years since the enactment of the Federal Rules of Evidence, the Courts of Appeals, almost uniformly, have found no conflict between Rule 104(a) and the independent-evidence requirement understood to adhere in Rule 801(d)(2)(E).[9] Indeed, *196 some courts have rejected the suggestion that Rule 104(a) has changed this component of the common-law exemption, because, like the Advisory Committee, they recognize the incremental protection against unreliable statements that this requirement gives to defendants. See, e. g., United Yet the Court cavalierly disregards these years of interpretative experience, as well as the rich history of this exemption, and arrives at its conclusion solely on the basis of its "plain meaning" approach. II The Court's second argument in favor of abandonment of the independent-evidence rule might best be characterized as an attempt at pragmatic or "real world" analysis. The Court suggests that, while a co-conspirator's statement might be presumed unreliable when considered in isolation, it loses this unreliability when examined together with other evidence of the conspiracy and the defendant's participation in it. Ante, at 179-180. In the Court's view, such a consideration of the statement will reveal its probative value, as the facts of this case demonstrate. Proceeding in this "real world" vein, the Court believes that the trial court is capable of detecting any remaining unreliability in the co-conspirator's statement and that the defendant
|
Justice Blackmun
| 1,987 | 11 |
dissenting
|
Bourjaily v. United States
|
https://www.courtlistener.com/opinion/111938/bourjaily-v-united-states/
|
remaining unreliability in the co-conspirator's statement and that the defendant is afforded the opportunity to point *197 out any shortcomings of the out-of-court statement. Ante, at 180. I, too, prefer an approach that includes a realistic view of problems that come before the Court. See, e. g., I am inclined, however, to remain with the traditional exemption that has been shaped by years of "real world" experience with the use of co-conspirator statements in trials and by a frank recognition of the possible unreliability of these statements. As explained above, despite the recognized need by prosecutors for co-conspirator statements, these statements often have been considered to be somewhat unreliable. It has long been understood that such statements in some cases may constitute, at best, nothing more than the "idle chatter" of a declarant or, at worst, malicious gossip. See 4 Weinstein & Berger ¶ 801(d)(2)(E)[01], p. 801-235. Moreover, when confronted with such a statement, an innocent defendant would have a difficult time defending himself against it, for, if he were not in the conspiracy, he would have no idea why the conspirator made the statement. See United (WD Okla.), aff'd, Even an experienced trial judge might credit an incriminatory statement that a defendant could not explain, precisely because the defendant had no ready explanation for it. Because of this actual "real world" experience with the possible unreliability of these statements, the Advisory Committee retained the agency rationale for this exemption in Rule 801(d)(2)(E), as well as the safeguards, albeit limited, against unreliability that this rationale provided the defendant. The independent-evidence requirement was one such safeguard. *198 If this requirement is set aside, then one of the exemption's safeguards is lost. From a "real world" perspective, I do not believe that considering the statement together with the independent evidence will cure this loss. Contrary to the Court's suggestion, the situation in which a trial court now commonly will rely on the co-conspirator's statement to establish the existence of a conspiracy in which the defendant participated will not be limited to instances in which the statement constitutes just another "piece of evidence," to be considered as no more important than the independent evidence. Rather, such a statement will serve the greatest purpose, and thus will be introduced most frequently, in situations where all the other evidence that the prosecution can muster to show the existence of a conspiracy will not be adequate. In this situation, despite the use of hearsay admissible under other exceptions and the defendant's and other conspirators' actions, the co-conspirator's statement will be necessary to satisfy the trial court
|
Justice Blackmun
| 1,987 | 11 |
dissenting
|
Bourjaily v. United States
|
https://www.courtlistener.com/opinion/111938/bourjaily-v-united-states/
|
co-conspirator's statement will be necessary to satisfy the trial court by a preponderance of the evidence that the defendant was a member of an existing conspiracy. Accordingly, the statement will likely control the interpretation of whatever other evidence exists and could well transform a series of innocuous actions by a defendant into evidence that he was participating in a criminal conspiracy. This is what "bootstrapping" is all about. Thus, the Court removes one reliability safeguard from an exemption, even though the situation in which a co-conspirator's statement will be used to resolve the preliminary factual questions is that in which the court will rely most on the statement. It is at least heartening, however, to see that the Court reserves the question whether a co-conspirator's statement alone, without any independent evidence, could establish the existence of a conspiracy and a defendant's participation in it. Ante, at 181; see also ante, at 184 (STEVENS, J., concurring). I have no doubt that, in this ultimate example of "bootstrapping," the statement could not pass the preliminary factual test for its own admissibility, even under the *199 Court's reformulation. For the presumptively unreliable statement would have no corroborative independent evidence that would bring out its probative value. See ante, at 179-180. If the statement alone could establish its own foundation for admissibility, a defendant could be convicted of conspiracy on the basis of an unsupported remark by an alleged conspirator a result that surely the Court could not countenance and that completely cuts the exception adrift from its agency mooring.[10] III The Court answers today a question left open in United There, while observing that the Confrontation Clause usually required the production of a declarant or a showing of his unavailability so that his out-of-court statement could be admitted against a defendant, the Court concluded that this requirement was not constitutionally mandated in the case of a nontestifying co-conspirator's statement admitted under Rule 801(d)(2)(E). The Court in Inadi did not have occasion to reach the issue of the reliability of such statements for Confrontation Clause purposes, and said so specifically. Today, the Court concludes that the Constitution does not require any independent "indicia of reliability" for such statements. See ante, at 182. Relying upon the Court reasons that no such "indicia" are needed to satisfy Confrontation Clause concerns, because the admissibility of these statements " `falls within a firmly rooted hearsay exception.' " Ante, at 183, quoting at In a footnote, the Court dismisses any suggestion that it is altering the co-conspirator *200 hearsay exemption: in its view, the exemption essentially remains the
|
Justice Blackmun
| 1,987 | 11 |
dissenting
|
Bourjaily v. United States
|
https://www.courtlistener.com/opinion/111938/bourjaily-v-united-states/
|
hearsay exemption: in its view, the exemption essentially remains the same, and what has changed is merely a "method of proof." Ante, at 184, n. 4 (emphasis omitted). In the Court did observe that, for Confrontation Clause purposes, "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." 448 U.S., at To understand the significance of this statement, however, it is important to remember why hearsay exceptions satisfy the reliability concern of that Clause. The Court in explained that "accuracy in the factfinding process" is a central concern of the Confrontation Clause that cross-examination normally serves. This concern is sometimes satisfied when evidence is admitted under a hearsay exception, even where no cross-examination of the declarant occurs at trial. This is because " `hearsay rules and the Confrontation Clause are generally designed to protect similar values,' " at quoting and because, with respect to a particular hearsay exception, there are adequate "indicia of reliability" of the out-of-court statement. These indicia serve to guarantee the trustworthiness of the declarant's statement and thus promote the accuracy of the trial a function otherwise fulfilled by cross-examination. Thus, to answer the Confrontation Clause's concern for reliability with respect to a particular hearsay exception, one must examine what, if any, "indicia of reliability" it possesses. In addition, one must also see how "firmly rooted" the exception is, which suggests that, through experience in its use, the exception has proved to promote the "accuracy of the factfinding process." See generally Note, 53 Ford. L. Rev., at 1306-1307. The weakness of the Court's assertion that the Confrontation Clause concern about reliability vanishes because Rule 801(d)(2)(E)'s exemption of a co-conspirator's statement from the hearsay definition is a "firmly rooted hearsay exception" thus becomes immediately apparent. First, as has *201 been explained and as its inclusion under the admissions rubric would indicate, this exemption has never been justified primarily upon reliability or trustworthiness grounds and its reliability safeguards are not extensive. See also Note, 53 Ford. L. Rev., at 1311-1312. Thus, it is surprising that, without any hesitation, the Court in this case turns to the "firmly rooted hearsay exception" rationale, which is based upon a confidence in adequate "indicia of reliability." Second, and more astounding, is the Court's reliance upon the "firmly rooted hearsay exception" rationale as it simultaneously removes from the exemption one of the few safeguards against unreliability that it possesses. The Court cannot at all escape from this contradiction by dismissing its alteration of the exception as simply a change in "method of
|
Justice Blackmun
| 1,987 | 11 |
dissenting
|
Bourjaily v. United States
|
https://www.courtlistener.com/opinion/111938/bourjaily-v-united-states/
|
of the exception as simply a change in "method of proof." Because the "firmly rooted hearsay exception" is defined in terms of its "indicia of reliability" for Confrontation Clause purposes, a removal of one of these "indicia" significantly transforms the co-conspirator exemption in a relevant respect. In addition, this change takes away from the exemption any weight that experience with its use by courts may have given it, thus undermining its "firmly rooted" status. In sum, the Court cannot have it both ways: it cannot transform the exemption, as it admittedly does, and then avoid Confrontation Clause concerns by conjuring up the "firmly rooted hearsay exception" as some benign genie who will extricate the Court from its inconsistent analysis. With such a transformation in the co-conspirator hearsay exemption having been made, the Court's reliance upon ' language concerning the "firmly rooted hearsay exception" is utterly misplaced. Rather, the pertinent language from becomes the sentence following the one quoted by the Court: "In other cases [where there is no "firmly rooted hearsay exception"], the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." 448 U.S., at This showing, I believe, would involve an examination of the statement in terms *202 of the factors outlined in ; see also Note, 53 Ford. L. Rev., at 1302. Intellectual honesty thus demands, at the very least, that, having changed this hearsay exemption, the Court remand the case to allow the lower courts to explore any "particularized guarantees of trustworthiness" the statement might have.[11] I respectfully dissent.
|
Justice Douglas
| 1,972 | 10 |
dissenting
|
Iowa Beef Packers, Inc. v. Thompson
|
https://www.courtlistener.com/opinion/108477/iowa-beef-packers-inc-v-thompson/
|
The arbitration clause in this collective agreement reaches "a grievance pertaining to a violation of the Agreement." The agreement covered both the lunch period[1] and overtime.[2] The Iowa Supreme Court held that "[t]he present controversy is undoubtedly arbitrable" under the collective agreement. Given the presumption favoring liberal construction of arbitration clauses, we should defer to *231 that ruling. Even under that construction, it seems that a suit for overtime allegedly withheld in violation of the Fair Labor Standards Act, 29 U.S. C. 207 (a) (1) is maintainable. That would mean affirming the Iowa Supreme Court. U. S. Bulk which kept the courthouse door open, would seem to control this case.[3] An affirmance would follow, a fortiori, if this collective agreement be construed as not requiring arbitration of this FLSA claim. For then it would seem that the worker would have a choice to sue under the statute or to proceed to arbitration on his contractual claim arising out of the same dispute. The petition, however, is not dismissed for those reasons but for a wholly different one. It is said that there was a requirement to be "on call" and that that duty conflicted with the lunch or overtime provisions of the agreement. The difficulty is twofold: there was no "on call" grievance ever tendered so far as the record *232 shows; moreover, the agreement concededly does not cover any "on call" requirement or duty. So there is no conflict between statutory remedy and remedy by arbitration and the difficulty posed is imaginary. We should "dismiss as improvidently granted" only in exceptional situations and where all nine members of the Court agree. In all other cases the merits of the controversy should be decided. The present case on its facts is simple and uncomplicated; and a decision on the merits is apparently important to unions and employer alike.
|
per_curiam
| 1,980 | 200 |
per_curiam
|
Secretary of Navy v. Huff
|
https://www.courtlistener.com/opinion/110177/secretary-of-navy-v-huff/
|
The question in this case is whether Navy and Marine Corps regulations violate 10 U.S. C. 1034 by requiring military personnel on an overseas base to obtain command approval before circulating petitions addressed to Members of Congress. Section 1034 provides that "[n]o person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful *454 or violates a regulation necessary to the security of the United States." I In 1974, Frank L. Huff, Robert A. Falatine, and Robert E. Gabrielson were serving in the Marine Corps at the United States Marine Corps Air Station in Iwakuni, Japan. On separate occasions, each of them sought the base commander's permission to circulate a petition addressed to a Member of Congress. The petitions dealt with the use of military forces in labor disputes within the United States, amnesty for men who resisted the draft or deserted the Armed Forces during the Vietnam war, and United States support for the Government of south Korea. The first two requests proposed circulation within the base; the last proposed circulation both within and without the base. The commander denied the first two requests, but he allowed the petition about South Korea to circulate within the base. On another occasion, Huff and Falatine each asked to distribute a leaflet annotating the Declaration of Independence and the First Amendment with commentary critical of military commanders who restrict petitioning. the base commander denied Falatine's request on the ground that the commentary was disrespectful and contemptuous, but on the same day and without explanation, he granted Huff leave to distribute the same material. Finally, respondents Huff and Falatine were arrested for circulating outside the base a petition to a Member of Congress that objected to American support for the Government of South Korea. They were charged with violating regulations because they had circulated the petition without requesting command approval. Huff was convicted and sentenced to confinement, forfeiture of half-pay, and reduction in grade. the charges against Falatine were dismissed for lack of evidence. The respondents then brought a class action in the United States District Court for the District of Columbia, seeking *455 declaratory and injunctive relief against future enforcement of four Navy and Marine Corps regulations.[1] Each regulation provides, in relevant part, that members of the Marine Corps shall not "originate, sign, distribute, or promulgate petitions, publications, or other written material on any military installation on duty or in uniform, or anywhere within a foreign country irrespective of uniform or duty status, unless prior command approval is obtained."[2] The *456 respondents
|
per_curiam
| 1,980 | 200 |
per_curiam
|
Secretary of Navy v. Huff
|
https://www.courtlistener.com/opinion/110177/secretary-of-navy-v-huff/
|
status, unless prior command approval is obtained."[2] The *456 respondents contended that this requirement violated 10 U.S. C. 1034 and the First Amendment. The petitioners conceded that the base commander had misapplied the regulations when he denied respondents permission to circulate their petitions within the base, and the respondents sought no relief for these past wrongs. Thus, the issue presented was the facial validity of the regulations that require prior command approval for petitioning inside and outside the Iwakuni air station. On cross-motions for summary judgment, the court declared the regulations invalid with respect to materials distributed within the base during off-duty hours and away from restricted or work areas. The court upheld the regulations with respect to distributions outside the base. In that situation, the court concluded, command approval was necessary to prevent political activity in violation of the Status of Forces Agreement between the United States and Japan.[3] The petitioners appealed, but the respondents did not cross appeal.[4] *457 The Court of Appeals for the District of Columbia Circuit affirmed in part and vacated in part. 188 U. S. App. D. C. 26, It concluded that the only real controversy between the parties concerned the application of the challenged regulations to petitions addressing Members of Congress. The court therefore considered only the validity of the regulations as they affect circulation within the base of petitions to Congress. It held that requiring prior command approval for the circulation of such petitions violated 10 U.S. C. 1034. That statute, the court concluded, gives both individuals and groups the right to petition Members of Congress. It allows only such restrictions on that right as are "necessary to the security of the United States." Since the record in this case showed that the Iwakuni base was not within "an actual and current combat zone," the court concluded that petitioners had not shown that a prior restraint on petitioning within the base was necessary to the national security. The court therefore did not reach the question whether the command approval requirement also violated the First Amendment. We granted certiorari to consider whether the challenged regulations, as they affect the circulation of petitions within a military base, violate 10 U.S. C. 1034.[5] *458 II In Brown v. Glines, ante, p. 348, decided today, we concluded that "Congress enacted 1034 to ensure that an individual member of the Armed Services could write to his elected representatives without sending his communication through official channels." Ante, at 359. Nothing in the legislative history suggests that Congress intended to authorize the unrestricted circulation of petitions within a military
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per_curiam
| 1,980 | 200 |
per_curiam
|
Secretary of Navy v. Huff
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https://www.courtlistener.com/opinion/110177/secretary-of-navy-v-huff/
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to authorize the unrestricted circulation of petitions within a military base. Indeed, both Congress and this Court have determined that "the special character of the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that affect internal discipline and morale." Ante, at 360. Thus, in construing statutes that affect such matters, we must not limit a commander's authority more than the legislative purpose requires. Permitting an individual member of the Armed Services to submit a petition directly to any Member of Congress serves the purpose of 1034 without unnecessarily endangering a commander's ability to preserve morale and good order among his troops. In Glines, therefore, we held that 1034 does not invalidate regulations requiring members of the Armed Forces to secure command approval before circulating petitions within a military base. Since the Court of Appeals reached a contrary conclusion in this case, its judgment is Reversed. MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. *459 [For dissenting opinion of MR. JUSTICE BRENNAN, see ante, p. 361.] MR. JUSTICE STEWART and MR. JUSTICE STEVENS dissent. For the reasons stated in their dissenting opinions in Brown v. Glines, ante, pp. 374 and 378, they would affirm the judgment of the Court of Appeals in this case.
|
Justice Rehnquist
| 1,979 | 19 |
dissenting
|
Delaware v. Prouse
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https://www.courtlistener.com/opinion/110045/delaware-v-prouse/
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The Court holds, in successive sentences, that absent an articulable, reasonable suspicion of unlawful conduct, a motorist may not be subjected to a random license check, but that the States are free to develop "methods for spot checks that do not involve the unconstrained exercise of discretion," such as "[q]uestioning all oncoming traffic at road-block-type stops" Ante, at 663. Because motorists, apparently like sheep, are much less likely to be "frightened" or "annoyed" when stopped en masse, a highway patrolman needs neither probable cause nor articulable suspicion to stop all motorists on a particular thoroughfare, but he cannot without articulable suspicion stop less than all motorists. The Court thus elevates the adage "misery loves company" to a novel role in Fourth Amendment jurisprudence. The rule becomes "curiouser and curiouser" as one attempts to follow the Court's explanation for it. As the Court correctly points out, people are not shorn of their Fourth Amendment protection when they step from their homes onto the public sidewalks or from the sidewalks into *665 their automobiles. But a random license check of a motorist operating a vehicle on highways owned and maintained by the State is quite different from a random stop designed to uncover violations of laws that have nothing to do with motor vehicles.[*] No one questions that the State may require the licensing of those who drive on its highways and the registration of vehicles which are driven on those highways. If it may insist on these requirements, it obviously may take steps necessary to enforce compliance. The reasonableness of the enforcement measure chosen by the State is tested by weighing its intrusion on the motorists' Fourth Amendment interests against its promotion of the State's legitimate interests. E. g., United In executing this balancing process, the Court concludes that given the alternative mechanisms available, discretionary spot checks are not a "sufficiently productive mechanism" to safeguard the State's admittedly "vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed." Ante, at 659, 658. Foremost among the alternative methods of enforcing traffic and vehicle *666 safety regulations, according to the Court, is acting upon observed violations, for "drivers without licenses are presumably the less safe drivers whose propensities may well exhibit themselves." Ante, at 659. Noting that "finding an unlicensed driver among those who commit traffic violations is a much more likely event than finding an unlicensed driver by choosing randomly from the entire universe of
|
Justice Rehnquist
| 1,979 | 19 |
dissenting
|
Delaware v. Prouse
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https://www.courtlistener.com/opinion/110045/delaware-v-prouse/
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unlicensed driver by choosing randomly from the entire universe of drivers," ibid., the Court concludes that the contribution to highway safety made by random stops would be marginal at best. The State's primary interest, however, is in traffic safety, not in apprehending unlicensed motorists for the sake of apprehending unlicensed motorists. The whole point of enforcing motor vehicle safety regulations is to remove from the road the unlicensed driver before he demonstrates why he is unlicensed. The Court would apparently prefer that the State check licenses and vehicle registrations as the wreckage is being towed away. Nor is the Court impressed with the deterrence rationale, finding it inconceivable that an unlicensed driver who is not deterred by the prospect of being involved in a traffic violation or other incident requiring him to produce a license would be deterred by the possibility of being subjected to a spot check. The Court arrives at its conclusion without the benefit of a shred of empirical data in this record suggesting that a system of random spot checks would fail to deter violators. In the absence of such evidence, the State's determination that random stops would serve a deterrence function should stand. On the other side of the balance, the Court advances only the most diaphanous of citizen interests. Indeed, the Court does not say that these interests can never be infringed by the State, just that the State must infringe them en masse rather than citizen by citizen. To comply with the Fourth Amendment, the State need only subject all citizens to the same "anxiety" and "inconvenien[ce]" to which it now subjects only a few. *667 For constitutional purposes, the action of an individual law enforcement officer is the action of the State itself, e. g., Ex parte Virginia, and state acts are accompanied by a presumption of validity until shown otherwise. See, e. g., Although a system of discretionary stops could conceivably be abused, the record before us contains no showing that such abuse is probable or even likely. Nor is there evidence in the record that a system of random license checks would fail adequately to further the State's interest in deterring and apprehending violators. Nevertheless, the Court concludes "[o]n the record before us" that the random spot check is not "a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which such stops entail." Ante, at 659. I think that the Court's approach reverses the presumption of constitutionality accorded acts of the States. The burden is not upon the State to demonstrate that its procedures are consistent with
|
Justice Stevens
| 1,998 | 16 |
dissenting
|
Breard v. Greene
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https://www.courtlistener.com/opinion/118194/breard-v-greene/
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The Court of Appeals' decision denying petitioner Breard's first application for a federal writ of habeas corpus became final on February 18, 1998. Under this Court's Rules, a timely petition for a writ of certiorari to review that decision could have been filed as late as May 19, 1998. See Rule 13.1 ("[A] petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a United States court of appeals is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment"). Ordinary review of that petition pursuant to our Rules would have given us additional time thereafter to consider its merits in the light of the response filed by the Commonwealth of Virginia. We have, however, been deprived of the normal time for considered deliberation by the Commonwealth's decision to set the date of petitioner's execution for today. *380 There is no compelling reason for refusing to follow the procedures that we have adopted for the orderly disposition of noncapital cases. Indeed, the international aspects of this case provide an additional reason for adhering to our established Rules and procedures. I would therefore grant the applications for a stay, and I respectfully dissent from the decision to act hastily rather than with the deliberation that is appropriate in a case of this character. Justice Ginsburg, dissenting in No. 97-8214 (A-732). I would grant the application for a stay of execution in order to consider in the ordinary course the instant petition, Breard's first federal petition for writ of habeas corpus.
|
Justice Kennedy
| 2,007 | 4 |
majority
|
Gonzales v. Carhart
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https://www.courtlistener.com/opinion/145744/gonzales-v-carhart/
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These cases require us to consider the validity of the Partial-Birth Abortion Ban Act of 2003(Act), ( ed., Supp. IV), a federal statute regulating abortion procedures. In recitations preceding its operative provisions the Act refers to the Court's opinion in which also addressed the subject of abortion procedures used in the later stages of pregnancy. Compared to the state statute at issue in the Act is more specific concerning the instances to which it applies and in this respect more precise in its coverage. We conclude the Act should be sustained against the objections lodged by the broad, facial attack brought against it. In No. 05-380 () respondents are LeRoy William G. Fitzhugh, William H. Knorr, and Jill L. Vibhakar, doctors who perform second-trimester abortions. These doctors filed their complaint against the Attorney General of the United States in the United States District Court for the District of Nebraska. They challenged the constitutionality of the Act and sought a permanent injunction against its enforcement. In after a 2-week trial, the District Court granted a permanent injunction that prohibited the Attorney General from enforcing the Act in all cases but those in which there was no dispute the fetus was viable. The Court of Appeals for the Eighth Circuit affirmed. We granted certiorari. In No. 05-1382 (Planned ) respondents are Planned of America, Inc., Planned Golden Gate, and the City and County of San Francisco. The Planned entities sought to enjoin enforcement of the Act in a suit filed in the United States District Court for the Northern District of California. Planned *1620 of The City and County of San Francisco intervened as a plaintiff. In the District Court held a trial spanning a period just short of three weeks, and it, too, enjoined the Attorney General from enforcing the Act. The Court of Appeals for the Ninth Circuit affirmed. We granted certiorari. 547 U.S. I A The Act proscribes a particular manner of ending fetal life, so it is necessary here, as it was in to discuss abortion procedures in some detail. Three United States District Courts heard extensive evidence describing the procedures. In addition to the two courts involved in the instant cases the District Court for the Southern District of New York also considered the constitutionality of the Act. Nat. Abortion It found the Act unconstitutional, and the Court of Appeals for the Second Circuit affirmed, Nat. Abortion The three District Courts relied on similar medical evidence; indeed, much of the evidence submitted to the court previously had been submitted to the other two -810. We refer to
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Justice Kennedy
| 2,007 | 4 |
majority
|
Gonzales v. Carhart
|
https://www.courtlistener.com/opinion/145744/gonzales-v-carhart/
|
been submitted to the other two -810. We refer to the District Courts' exhaustive opinions in our own discussion of abortion procedures. Abortion methods vary depending to some extent on the preferences of the physician and, of course, on the term of the pregnancy and the resulting stage of the unborn child's development. Between 85 and 90 percent of the approximately 1.3 million abortions performed each year in the United States take place in the first three months of pregnancy, which is to say in the first trimester. Planned and n. 4; App. in No. 05-1382, pp. 45-48. The most common first-trimester abortion method is vacuum aspiration (otherwise known as suction curettage) in which the physician vacuums out the embryonic tissue. Early in this trimester an alternative is to use medication, such as mifepristone (commonly known as RU-486), to terminate the pregnancy. Nat. Abortion The Act does not regulate these procedures. Of the remaining abortions that take place each year, most occur in the second trimester. The surgical procedure referred to as "dilation and evacuation" or "D & E" is the usual abortion method in this trimester. Planned -961. Although individual techniques for performing D & E differ, the general steps are the same. A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. Nat. Abortion ; App. in No. 05-1382, at 61. The steps taken to cause dilation differ by physician and gestational age of the fetus. See, e.g., 856, 859, 862-865, 868, 870, 873-874, 876-877, 880, 883, 886. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix *16 for two days, while others use dilators for a day or less. Nat. Abortion ; Planned After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina,
|
Justice Kennedy
| 2,007 | 4 |
majority
|
Gonzales v. Carhart
|
https://www.courtlistener.com/opinion/145744/gonzales-v-carhart/
|
forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed. See, e.g., Nat. Abortion ; Planned Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus' body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit. ; Nat. Abortion The abortion procedure that was the impetus for the numerous bans on "partial-birth abortion," including the Act, is a variation of this standard D & See M. Haskell, Dilation and Extraction for Late Second Trimester Abortion 1 Appellant's App. in No. 04-3379(CA8), p. 109 (hereinafter Dilation and Extraction). The medical community has not reached unanimity on the appropriate name for this D & E variation. It has been referred to as "intact D & E," "dilation and extraction" (D & X), and "intact D & X." Nat. Abortion ; see also F. Cunningham et al., Williams Obstetrics 243 (identifying the procedure as D & X); Danforth's Obstetrics and Gynecology 567 (J. Scott, R. Gibbs, B. Karlan, & A. Haney eds. 9th ed.2003) (identifying the procedure as intact D & X); M. Paul, Lichtenberg, L. Borgatta, D. Grimes, & P. Stubblefield, A Clinician's Guide to Medical and Surgical Abortion 136 (1999) (identifying the procedure as intact D & E). For discussion purposes this D & E variation will be referred to as intact D & The main difference between the two procedures is that in intact D & E a doctor extracts the fetus intact or largely intact with only a few passes. There are no comprehensive statistics indicating what percentage of all D & Es
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